Mrinal Sirkar vs Radhanath Sirkar

Narayan Chandra Sil, J.—This is to consider an application under the Contempt of Courts Act read with Article 215 of the Constitution of India rising out of an order dated August 31, 2001 passed by Mr. Amitava Lala J. in connection with G.A. No. 3017 of 1998.

The Petitioner''s case in brief is that a suit was instituted by Brojeswar Sarkar and Rajeswar Sarkar, the uncles of the Petitioner for discovery of the estate of Manmotho Bhusan Sarkar particularly in respect of accounts dealt in by Gostha Behari Sirkar and also for declaration of the share of the Plaintiffs and partition by metes and bounds. The said suit was numbered as C.S. No. 2706 of 1955. The parties to the suit died subsequently and the necessary changes were made. On September 19, 1960 a preliminary decree was passed in that suit with some directions to the Special Referee and Commissioner of Partition. Thereafter one petition being G.A. No. 3017 of 1998 was filed by one Mihir Kumar Sarkar, the Defendant No. 1B. The present Petitioner, Sri Mrinal Sarkar is one of the legal heirs of the Defendant No. 2, Krishna Gopal Sirkar who died intestate.

The said application being G.A. No. 3017 of 1998 was heard on August 31, 2001 by Mr. Amitava Lala J. and it was disposed of with some directions upon the Joint Receivers (Sri Ananda Prasad Ghosh and Sri Prasanta Naskar, learned Advocates) appointed to carry out such directions. The said order dated August 31, 2001 is well within the knowledge of the Respondents as the Respondent No. 1 had dealt with the said order in his affidavit affirmed on February 8, 2002 in G.A. No. 917 of 1996 arising out of the said suit. The Joint Receivers in compliance with the order passed on August 31, 2001 had been collecting rents from the tenants of the suit premises and granting rent receipt thereof to them.

Subsequently, the Petitioner came to know that one Sri Manick Chowdhury filed two writ petitions claiming himself to be a tenant of premises No. 160, B.B. Ganguly Street under ''Iswar Sree Sree Raj Rajeswar Jew Trust''. Sri Chowdhury had also annexed rent receipts granted to him. The Petitioner was surprised at this, for, neither Respondent No. 1 nor Respondent No. 2 has any right to colelct rents and as such the alleged tenancy had been created unlawfully by the Respondents in the said premises and they wilfully and deliberately violated the order dated August 31, 2001. In the circumstances, it is prayed that the properties and assets of the Respondents be attached and the Respondents and their servants arid agents be restrained from collecting rents.

The Petitioner affirmed another affidavit on February 27, 2003 wherein it is inter alia alleged that in view of service of Rule Nisi in the absence of the contemnors on September 17, 2002 Mr. Amitava Lala J. directed the contemnors to be present personally. On September 24, 2002, the learned Advocate representing the contemnors appeared and offered unconditional apology which was accepted by His Lordship. On January 28, 2003 the Respondent No. 1 in order to avoid rigour of Contempt of Court obtained an order by practising fraud upon the Court. It appears from the annexure wherein the copy of the said order has been annexed that the said order was passed by Mr. Amitava Lala J. whereby the contemnors took time of file affidavit-in-opposition.

The Respondent Radhanath Sirkar has contested the application by filing affidavit-in-opposition in which all the material allegations are denied and it is inter alia stated that the alleged rent receipts showing the purported contempt of court''s order has not been annexed by the Petitioner. It is also stated that on record there is no documentary evidence to demonstrate before this Court that the order dated August 31, 2001 had been bypassed or violated by the Respondents not there is even any indication as to how the said violation did occur. It is also stated that the supplementary affidavit sworn by the Petitioner has not recorded the alleged lapse of the Respondents in the original contempt petition and no cognizence can be taken on such supplementary affidavit. The Respondents further stated that he was quite conscious of the solemnity of the order passed by the Court to obey the same far from violating the same. The Respondents have pointed out that the Petitioner has suppressed an important order passed by the Court on March 12, 1998 wherein it was stated as below:

There will be an ad-interim order to the effect that the order passed by the learned single judge will not prevent the receiver from taking steps for maintenance of status-quo relating to joint family property in the said...

It is also stated that under Article 215 of the Constitution the matter of contempt cannot be delegated from one Court to other. But I like to make it clear here that Mr. Justice Amitava Lala had released the matter and thereafter the matter was assigned to me by the Hon''ble Chief Justice of this Court. The Respondents have denied the allegation that there is any violation of the order in question.

Mr. R.N. Dutt, the Learned Counsel for the Petitioner has supplied the list of the dates and has drawn my attention to the order in Annex. ''A'' appearing at page 13 of the petition. Mr. Dutt has also drawn my attention to the other annexures to the petition. Mr. Dutt has submitted from the supplementary affidavit sworn by the Petitioner and tries to impress upon me about the misrepresentation of the Respondents before the Court. He has also taken me through the affidavit sworn by Sri R.N. Sirkar. He has also argued that the Respondents now want to take shelter under the order dated March 12, 1998. Mr. Dutt has thus taken me through the affidavit-in-reply filed by the Petitioner. Some case laws have been referred by Mr. Dutt which I shall discuss at the appropriate point of time.

Mr. P.K. Dutt, the Learned Counsel appearing for the contemnors submits from para. 6 of the application of the Petitioner and tries to impress upon me that the Petitioner admitted its pending before the Court in the suit. It has also been submitted by him that Mr. Manick Chowdhury did not claim to be tenant of Krishna Gopal, predecessor of the Petitioner and he was there as a tenant since before the order dated August 31, 2001. Mr. P.K. Dutt further submits that the status quo order dated March 12, 1998 which was prior to the order dated August 31, 2001 is relevant for the purpose. Mr. Dutt is conspicuous in his submission that the present petition deals with the induction of Manick Chowdhury alone and none-else although the supplementary affidavit of the Petitioner goes to show that some other persons were inducted as tenants after the order dated August 31, 2001. He has made this submission without any prejudice to his client. It is also pointed out by him that the Rule Nisi was issued on August 13, 2002 but the supplementary affidavit was sworn prior to it i.e. on July 16, 2002. Mr. Dutt has also referred to a number of case laws which I shall discuss later on.

I shall now discuss the case laws referred to by the Learned Counsel for the Petitioner. Thus, in the case of Bank of India Vs. Vijay Transport and Others, the alleged acts of contempt were (i) unauthorisedly dealing with the property custodia legis and (ii) violating orders of Court, The Hon''ble Apex Court observed that certainly either of those two acts, if established, would tantamount to contempt. It was also oserved that property in custodia legis means that the property is kept in the possession and under the protection of Court. Monies deposited in Court by way of security were held by the Court in custodia legis to the credit of the party who was ultimately successful. Any person dealing with the account so deposited died so at his or her peril and any legitimate disturbance of the court''s possession without its permission amounts to contempt of its authority. In the said case the Supreme Court did not find any reason to be doubtful that the Respondent has wilfully dealt with the property which was custodia legis. This was done in furtherance of a plan to reap an illegal benefit and the same was established by the fact that even though the Respondents had not filed any application for payment to them of Rs. 16 lakhs, anticipating the order that they would obtain the Respondents opened the current account in the State Bank of India, four days prior to passing of the order dated December 30, 1985. The Hon''ble Apex Court found so many circumstances including that the Respondents opened an account in the Bank where the Subordinate Judte had also the account and came to the conclusion that there was careful preplanning of the Respondents in that regard. The Respondents could not show before the Supreme Court on what basis they received the money. Thus, the Supreme Court had no hesitation in sentencing both the Respondents to imprisonment in addition to payment of fine.

Mr. R.N. Dutt has also referred to the ratio decided in the case of M.C. Mehta Vs. Union of India (UOI) and Others, . It was held in that case that an apology must be sought at the earliest opportunity and the apology tendered by the Respondent at a belated stage is only to escape punishment of the Court. Furthermore, the Hon''ble Supreme Court found from para. 6 of the affidavit that the Respondents denied that he had committed any contempt and defended his action whereas in para. 9 of the affidavit the Respondent tendered unconditional apology and the Hon''ble Supreme Court observed that the apology so tendered by the contemnor is not a product of remorse or contrition.

Mr. P.K. Dutt, the Learned Counsel appearing for the contemnors has referred to the ratio decided in the case of Bharat Coking Coal Ltd. v. The Paneegunge Coal Association Ltd. and Ors. AIR 1978 S.C. 1456. In the said case the Plaintiff Bank brought a suit against B and R in the Calcutta High Court claiming a money decree for the total amount due to it in the cash credit account and the loan accounts and for a declaration of a first charge in respect of present and future book debts, outstanding moneys and bills which inter alia had remained hypothecated as security. A prayer for appointment of receiver was also made. The High Court accordingly appointed joint receivers in respect of all book debts including those already realised by B before the suit was filed. It was held that in acting on the plaint as it stood and without specifically finding that the moneys representing the realised book-debts could legitimately be claimed by the Plaintiff Bank, the High Court erred in making an order appointing Joint Receivers in respect of those moneys.

Mr. Dutt has also referred to the ratio decided in the case of Governor of Bengal v. Moti Lal Ghosh and Anr. AIR 1914 Cal. 69 . The Special Bench of this Court held that in order to justify recourse to the summary process of contempt, it is not enough that there should be a technical contempt of Court and it must be shown that it was probable that the publication would substantially interfere with the due administration of justice.

Thus, keeping the submissions of the Learned Counsels for the parties and the different authorities cited by them in the background I am now trying to enter into the core area of the dispute with this note of my dismay that the petition under consideration before me is in my view not happily drafted. However, what it is understood by me is that the allegation of the Petitioner is the deliberate violation of the order dated August 31, 2001 passed by Mr. Amitava Lala J. The relevant portion of the said order appearing as Annex. ''A'' at page 13 of the petition reads as under:

The Court: Without prejudice to the rights and contentions of the parties, the Joint Receivers, already appointed in respect of the other properties are directed to collect rent and pay the statutory liabilities to the Statutory Authorities including-Calcutta Municipal Corporation to avoid other difficulties in respect of the owner of the properties till the disposal of the suit and application, Mr. Mrinal Sirkar and Mr. Mohan Sirkar the brothers being owners and the co-sharers of the properties, who are present in Calcutta, will assist the Joint Receivers to ascertain how many tenants are there in the premises Nos. 160 and 160/1, B.B. Ganguly Street, Calcutta for the purpose of realisation of rents and payments of statutory liabilities and other incidental purposes.

The allegation in the petition is that the learned Advocate for the Respondent was present when the said order was passed and the Respondents were very much in the know about the said order. It is further alleged that the Petitioner came to learn from the copy of the writ petition filed by the Manick Chowdhury against C.E.S.C. Limited and Anr. that the Respondent No. 1, Radhanath Sirkar had granted rent receipts as Chairman/Shebait of Iswar Sree Sree Raj Raj Rajeswar Jew Trust in respect of premises No. 166 B.B. Ganguly Street. The said rent receipts are appearing in Annex. ''D'' and ''D/1'' at page 17 and 18 of the petition. One of such rent receipts appearing to be dated August 20, 2001 and the other dated October 10, 2001. There are other rent receipts also of subsequent dates. Thus, it is apparently clear that the rent receipts were issued subsequently to the order passed on August 31, 2001 except the rent receipt dated August 20, 2001 (annexure ''D'') appearing at page 17 of the petition.

Appropriate Rule was issued on the application of the Petitioner for violation of the order dated August 31, 2001. It is gathered from the relevant Rule that in the application alleging the violation of the said order it was stated as below:

(i) The Respondents and each of them have deliberately and wilfully disobeyed the order and/or directions dated 31st August, 2001 passed by His Lordship The Hon''ble Justice Amitava Lala by collecting rents issues and profits month by month from premises No. 160, B.B. Ganguly Street, Kolkata-700012; (ii) The Respondents and each of them have deliberately and wilfully disobeyed the order and/or directions dated 31st August, 2001 passed by His Lordship the Hon''ble Justice Amitava Lala by issuing rent receipts month by month on collection of rents issued and profits from Premises No. 160, B.B. Ganguly Street, Kolkata 700012. (iii) The Respondents and each of them by their aforesaid contumacious conduct brought this Hon''ble Court to ridicule, hatred and committed contempt and have shown their disregard and disrespect for this Hon''ble Court and its order and/or directions.

Thus, it is clear from the above that there were as many as three allegations against the Respondents in the said application. Now, let us see what was the relevant Rule in this regard. The relevant Rule reads as below:

Upon reading a petition of Mrinal Sirkar above-named (hereinafter referred to as ''the said Petitioner'') and his affidavit in verification thereof affirmed on the twenty-sixth day of June in the year two thousand and two and on exhibit annexed to the said petition and marked ''A'', ''B'', ''C and ''D'' all filed on the twenty seventh day of June in the year two thousand and two And upon hearing Mr. R.N. Dutt, advocate for the said Petitioner.

It is ordered that a Rule do issue calling upon Respondent Radhanath Sirkar residing at Gopalpur, P.S. Ghatsila, East Shinghbhum, State of Jharkhand being outside the jurisdiction of this Hon''ble Court (hereinafter referred to as ''the said Respondent'') to show cause before this Court why should not be committed to prison or otherwise penalised and/or held guilty and/or adequately dealt with for having committed contempt of this Court by wilfully, deliberately and contumaciously violating the order made by this Court in G.A. No. 3017 of 1998 Gouri Sirkar and Ors. v. Monibhusan Sirkar and Ors. and dated the thirty first day of August in the year two thousand and one (hereinafter referred to as ''the said order'') in the manner following-(i) the said Respondent has deliberately and wilfully disobeyed the said order and/or directions by collecting rents issues and profits month by month from premises No. 160, B.B. Ganguly Street, Kolkata 700012; (ii) the said Respondent has deliberately and wilfully disobeyed the said order and/or directions by issuing rent receipts month by month on collection of rents issues and profits from premises No. 160, B.B. Ganguly Street, Kolkata-700012; (iii) the said Respondent by his aforesaid contumacious conduct brought this Court to ridicule, hatred and committed contempt and has shown his utter disregard and disrespect to this Court and its order and/or direction. And it is further ordered that the said Petitioner is granted liberty to serve the Rule upon the said Respondent by Registered Post in case, the said Respondent resides outside the jurisdiction of this Court And it appearing to this Court from the submission of the said Petitioner that inspite of giving direction to Receiver to collect the rents from the tenants in respect of premises No. 160 and 160/1, B.B. Ganguly Street, Calcutta the rents have been collected by one Contemner And it further appearing that if any rent is paid by any of tenants to such Contemner, it is their own risk and responsibility as per order of the Court dated the thirty first day of August in the year two thousand and one And it further appearing that the only authorised persons to collect the rent are the Joint Receivers. And it further appearing that therefore any payment of rent by any of the occupants of such premises and collection in connection thereof other than the Joint Receivers shall be treated as further contravention of the order of the Court And it is further ordered that the Rule is made returnable on Tuesday the seventeenth day of September in the year two thousand and two and that on the aforesaid returnable date the said Respondent shall appear personally before this Court at the hour of 10.30 O''clock in the forenoon and shall not leave this Court withoug permission.

Witness: Shree Ashok Kumar Mathur, the Chief Justice at Calcutta aforesaid the thirteenth day of August in the year two thousand and two.

Upon reading the allegations against the contemners and the Rule issued there against it appears to me that the vortex of the order mainly centres round the collection of rent by the Respondents from premises No. 160 and 160/1, B.B. Ganguly Street, Kolkata-700012. In this connection, I may hark back the order dated August 31, 2001 where it is specifically stated that the order was passed ''without prejudice to the rights and contentions of the praties'' and ''in respect of the other properties'' the Joint Receivers, were directed to collect rents and pay the statutory liabilities etc. The terms ''other properties'' have not been clarified in the said order and with all presumption it was pointed to the suit properties. The learned Advocate for the Petitioner has candidly admitted that the premises No. 160 and 160/1 B.B. Ganguly Street, Kolkata were not the suit properties. And what is the direction as regards premises No. 160 and 160/1 B.B. Ganguly Street, Kolkata in the order dated August 31, 2001? I have already quoted the said order in the earlier pages of this order and it will appear therefrom that Mr. Mrinal Sirkar and Mr. Mohon Sirkar, the brothers will assist the Joint Receivers to ascertain how many tenants are there in those two premises for the purpose of realisation of rents and payments of the statutory liabilities and other incidental purposes. In the said order Mr. Mrinal Sirkar and Mr. Mohon Sirkar, the brothers were described as the owners and co-sharers of the properties.

We may take it though not clearly and specifically stated that the Joint Receivers were directed to realise rent also from premises No. 160 and 160/1, B.B. Ganguly Street, Kolkata as the Sarkar brothers were the owners and co-sharers of those two premises. But tact remains from the admission of the learned Advocate for the Petitioner that those are not the suit properties.

Mr. P.K. Dutt, the learned Senior Counsel appearing for the Respondents referred to the ratio decided in the case of Bharat Coking Coal Limited Supra which I have already discussed. There, in that case the propriety of the order of High Court appointing Joint Receivers in respect of book-debts without specifically finding that the moneys representing the realised book-debts could legitimately be claimed by the Plaintiff Bank, was called in question and it was held that the High Court erred in passing the order. But the property of the order dated August 31, 2001 appointing the Joint Receivers in respect of premises No. 160 and 160/1, B.B. Ganguly Street, Kolkata cannot be challenged in a contempt application.

Mr. P.K. Dutt submitted that the contemnors are supposed to reply the Rule issued and I fully agree with him in this regard. In the said Rule in order to establish the alleged contempt the Annex. A, B, C and D to the application find mention. Annexure ''A'' appearing at page 13 of the application is the copy of the order dated August 31, 2001. Annexure ''B'' is the rent receipt issued to Sujit Kumar Bose and Sumit Kumar Bose in respect of Western Side 1st floor, premises No. 160 B.B. Ganguly Street, Kolkata 700 012. The said rent receipt was issued by the Joint Receivers dated December 3, 2001. Annexure ''C'' is the xerox copy of the letter of Mr. Basanta Kr. Sen, learned Advocate enclosing a copy of the writ application. Annexure ''D'' is the rent receipt issued by Radha Nath Sirkar one of the contemnors as Chairman/Sevayet of Trust for Iswar Sree Sree Raj Rajeswar Jew Trust in favour of one Manick Chowdhury in respect of a shop room with another room thereupon with asbestos shed of premises No. 160 of B.B. Ganguly Street. The said rent receipt was issued on August 20, 2001 i.e. to be precise before the order dated August 31, 2001. The Petitioner has also incorporated four other rent receipts issued by said Radha Nath Sirkar in favour of the said Manick Chowdhury in respect of the same property as appeared in Annex. ''D'' and those rent receipts are described as ''D Con-1'', ''D Con-2'', ''D Con-3'' and ''D Con-4'' and those rent receipts were issued on October 10, 2001, November 22, 2001, December 05, 2001 and May 5, 2002 respectively but except Annex. ''A'' none of those rent receipts purported to be under D-series bears any stamp of the Court, as in case of Annex. ''D''. Moreover, those so-called Annexures of D-series are also not the subject matter of the Rule issued against the contemnors hereinbefore me.

Contempt application always stands on a separate footing for consideration before the Court as it involves the curtailment of the civil right of a contemnor and even imprisonment is the punishment therefor. It is the mandate of the Apex Court in a number of cases that the power of contempt is always expected to be invoked very sparingly only in the case of flagrant, latant and deliberate violation of the order of Court. The Rule, as we have quoted in the foregoing liens, speaks of Annex. ''D'' in particular for us to determine the question of violation of the order by the Respondents. But, it is very candid that Annex. ''D'', the rent receipt, was issued prior to the order complained to have been violated by the Respondents.

Mr. P.K. Dutt, the learned Senior Counsel for the Respondents, although pressed the status quo order dated March 12, 1998, subsequently eschewed from pressing the same.

In course of giving reply Mr. R.N. Dutt, the learned Senior Counsel for the Petitioner has referred to the rario decided in the case of Jhareswar Prasad Paul and Another Vs. Tarak Nath Ganguly and Others, . It was held in that case as below:

The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country.... The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the Applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained.... If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the Court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the courts'' exercising contempt of court jurisdiction ''that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute'' in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.

Mr. P.K. Dutt, the learned Senior Counsel for the Respondents in reply to the case law cited by the Learned Counsel for the Petitioner submits that he has relied upon the same principles. In fact, the principles enunciated by the Hon''ble Apex Court is the law of the land. I could have referred the matter back to Mr. Amitava Lala J. for consideration but, at the cost of repetition, there is no such scope left before me, for, Mr. Justice Lala has since released the matter and I have been assigned to deal with the same.

Here I like to conclude as regards the other case laws referred to by the learned Senior Counsel for the Petitioner that those are not applicable to the instant case inasmuch as in the instant case I do not find any deliberate violation of the order dated August 31, 2001 by the Respondents.

Accordingly, in view of what has been stated in the foregoing lines, the present contempt application is dismissed. The Rule issued is discharged.