JUDGMENT
S.U. Kamdar, J.
1. The present show cause notice is issued under section 2 r/w s. 12 of the Contempt of Courts Act and in exercise of power conferred under Article 215 of the Constitution of India against the Contemnor namely Narendra S.Soni @ Patadia and his son namely Shailendra N. Patadia. The aforesaid show cause notice was issued in view of the following circumstances.
2. In the present case, company petition is filed u.s. 433 and 434 of the Companies Act, 1 of 1956 for winding up of company namely Hitechi Jewellery Industries Ltd. In a Company Application No.277 of 2002 which was initiated by the petitioner an order dt.21.2.03 was passed by this court and it was directed that pending the hearing and final disposal of the petition an Official Liquidator, High Court, Mumbai be appointed as Provisional Liquidator of all the assets of the Company. The Liquidator was also directed to take charge of all the assets and properties belonging to the respondent company.
3. Pursuant thereto, the Liquidator was also appointed as Provisional Liquidator in respect of the premises situated at 175, 2nd Floor, Vallabhdas Kanji Building, Princess Street, Mumbai 400 002. In pursuance of the said order the possession of the said premises was taken and sealed. Thereafter the directors of the company took out an application for setting aside ex-parte order of the appointment of Official Liquidator. The said application was dismissed and appeal was preferred against the dismissal of the said application and the matter was thereafter remanded back by the appeal court to the learned single Judge with the direction to consider the said application in accordance with law. While remanding the matter the appeal court has directed that the Official Liquidator to continue in possession of all assets of the company as Provisional Liquidator. The said company application being company application no.310 of 2003 interalia only seeks reliefs that the official liquidator, High Court, Mumbai should remove the seal fixed on the ownership premises alleged to be belonging to the applicant herein who are the director and his son of the said company. The said application was placed before me for hearing sometime in or about January 2005. At the time of the hearing it was pointed out to me that there were also another set of proceedings being the Arbitration Proceedings and that an order was already passed on 13.8.2001 interalia directing the Court Receiver appointed u.s. 9 of the Arbitration proceedings to terminate the agency and take forcible possession of the vehicle namely Mercedes Car and Tata Safari. It was also pointed out that inspite of the aforesaid orders the applicant did not hand over possession of the said cars to the Court Receiver and the Tata Finance who were intervening in the said Company Application had also taken out Judges Order for forcible possession of the said cars.
4. In view of the non-compliance of the order dt.13.8.01 by the applicant I specifically directed the Court Receiver to take forcible possession of the said two cars. I have recorded in my order dt.3.11.05 that at the hearing of the said proceedings before me both the applicants herein refused to furnish details of whereabouts of the said cars. I had thereafter issued directions that both applicant and son should remain present in court. However, inspite of the said directions the son did not remain present in court and a statement was made by the applicant that his son is not available and cars are with his son. Matter was thereafter adjourned with the direction that on the next date of hearing, applicant should appear alongwith his son and give details of the addresses where the said cars are lying. On the said next date of hearing neither the applicant nor his son gave any details about the location of the said cars except making a statement that the said cars are sent for repairs in the garage. Matter was thereafter adjourned again to enable the applicant to furnish details of addresses of the garage where the said cars were given for repairs. However, in place of giving the details about the whereabout of the cars on the next date of hearing, both son and applicant did not attend the court at all. However, the learned counsel for the applicants stated that he is not aware why his client is not present though he intimated him that he should remain present in court today. As far as advocate is concerned he informed the court that he is not in a position to give any details of the said cars so as to enable the respondent to take possession thereof because his client has not furnished any details to him. He thus, merely made a statement that he has no instruction in the matter.
5. From the aforesaid position, I found that the possession of the said two cars is not handed over by the applicant and his son though there is a direction terminating their agency as well as direction to take forcible possession of the said cars. In the aforesaid circumstances, I passed an order on 31.1.05 directing the Court Receiver to take forcible possession of the cars with the help of police. I further passed an order directing the Court Receiver to visit the premises of the company at Sanjan as well as residential premises and trace out the whereabouts of the said cars and take custody and possession thereof immediately.
6. The Court Receiver thereafter made a report that the Court Receiver has made necessary visits but cars are not found either at the company premises or at Sanjan as suggested by the applicant and his son. Court Receiver further stated that the cars were not traceable. It was further pointed out that neither the applicant nor his son co-operated in complying with the order passed by this court on 13.8.01 and 31.1.05. The said report was prepared by the Court Receiver on 16.02.05 which was placed on record which interalia discloses that whereabouts of the cars are not available and they are unable to trace the same. On the next date of hearing i.e.17.2.05 both the applicant and his son were present in court. once again asked both the applicant and son to give details of the cars and where they are lying. In place of giving the details, both applicant and son refused to divulge any details and only made a statement that they desire to file appeal against order dt.31.1.05.
7. In the aforesaid circumstances, it was clear that the applicant and his son have committed a total and utter defiance of the orders passed by this court against applicant and his son and utter defiance in answering the queries of the court. I therefore, issued a contempt notice by exercising power u.s. 2 r/w s. 12 of the Contempt of Courts Act and Article 215 of the Constitution of India. The applicant thereafter, preferred an appeal against both the aforesaid orders to the Division Bench of this Court. In the appeal proceedings on 14.3.05 the applicant disclosed to the appeal court the whereabouts of the said cars and also promised to hand over possession of one of the cars namely Mercedes during the course of the day. As far as Tata Safari Vehicle is concerned, the applicant promises to hand over possession of the same on the next date i.e.15.3.05. It seems that pursuance to the said order passed by the appeal court, the Court Receiver has been able to take possession of the said cars. However, possession of the cars handed over is in an absolutely run down condition and most of the spare parts have already been removed of the said cars. The matter was thereafter finally heard by the Division Bench and by an order and judgment dt.7.4.05 the appeal preferred challenging the aforesaid two orders passed by me on 31.1.05 and 17.3.05 was dismissed. The appeal court also directed that as far as present show cause notice is concerned matter should be heard by the learned single Judge. Subsequently, thereafter I have heard the parties at length.
8. I have also perused the report of the Court Receiver which indicates that the car is in a very bad condition. Most of the spare parts of the car are already been removed. I asked the applicant and his son whether they are willing to bear the repairs expenses of the said cars. However, the attitude of the applicant and son is that of clear defiance. The learned counsel stated that the applicant and son are not interested in bearing any expenses towards the repairs of the said cars and has stated that the cars which were given to them were in a same condition. However, the applicant and his son has filed joined affidavit dt.22.3.05 tendering apology. Normally, as a court of justice the court would accept the apology and take lenient view of the matter. However, in the present case I find that there is a consistent and open defiance of the authority of the court. I also find that there is a total disregard to the orders passed by this court from to time. The order of handing over possession of the cars was passed as far back as 13.8.01. For 4 years the applicant and his son have openly defied the orders passed by this court. When the occasion arose and I questioned the applicant and son about the cars and its whereabouts. I found that there has been a total defiance and refusal to furnish any material particulars and details so as to enable the compliance of the orders passed by this court.
9. It is most unfortunate that even before the appeal court the attitude was the same as recorded by the Appeal Court in its order dt.7.4.05. I also find that even after the appeal is dismissed still the attitude of the applicant and son is the same. They are totally refusing to pay any amount towards the repairs of the car which was in their custody and possession as an agent of the receiver. In so far as handing over possession of the car is concerned same was required to be obtained by force and orders passed by this court was required to be implemented by passing various orders including the issuance of the present show cause notice. Even after issuance of show cause notice the attitude of the applicant and son has not changed. In the aforesaid circumstances, I find that the apology furnished on an affidavit dt.22.3.05 is merely a pretext and is not genuine apology. The present apology is only tendered with a view to avoid imposition of punishment in the present proceedings.
10. In the aforesaid circumstances, I am unable to accept the said apology. I reject the same. In view of the fact that there has been a complete defiance of the orders passed by this court and total defiance of furnishing any details to this court. Furthermore, by virtue of stripping out major parts of the cars applicant and his son have aggravated the said contempt. I am of the opinion that in the present case the applicant and his son cannot be let out by mere apology but suitable punishment also should be imposed. I therefore, convict the applicant and son of contempt of this court and I impose simple imprisonment of two months and fine of Rs.2,000/- on both. I also impose the cost of the present proceedings at Rs.5,000/-on each of the applicant and son. I, however, suspend the sentence imposed on the applicant and son upto a period of 30.6.05 so as to enable them to prefer the appeal against this order. Show cause notice disposed of accordingly.