ORDER
S.N. Phukan, J.
1. By order dated 21-11-89, the learned single Judge of this Court on perusal of the judgment of the Division Bench of this Court dated 26-9-89 passed in Civil Original Petition (Contempt) No. 75/88, was of the opinion that there was prima facie ease in respect of the present petition for initiating proceeding for contempt of Court and, accordingly, notice was issued. Parties have appeared and filed counter-affidavit.
2. I have heard Mr. S.K. Sen, learned counsel for the petitioner and Mr. D.N. Chaudhury, learned counsel for the opposite parties. 3. For the purpose of the present petition the facts of the case may he briefly stated as follows :
The plaintiff is the sole proprietor of a business firm known as M/s. Khubchand & Sons, Music Department and is engaged in selling various types of goods including Audio and Video products of the renowned manufacturers of the Country including the product sold under the trade name ONIDA. According to the plaintiff-petitioner, the defendant No. 1 is the manufacturer of the said product ONIDA with Head Office at Delhi and Defendant No. 2 is an associated company of the defendant No. 1 for marketing and selling the products. The defendant No. 3 is the Officer-in-charge of the defendants 1 and 2 and the defendant No. 4 is the Regional Manager at Calcutta, and defendant No. 5 is the Managing Director of the defendants 1 and 2. It is not disputed that the plaintiff-petitioner became the authorised dealer of the said product ‘ONIDA’ since 6-11-85. According to the plaintiff in August, 1989 one Sales Executive of defendants 1 and 2 visited the show room of the plaintiff and informed that they would not allow the plaintiff to continue as authorised dealer as the plaintiff was also selling the products sold under the brand name VIDEOCON. The grievance of the plaintiff-petitioner is that thereafter the defendants did not show the name of the plaintiff in the advertisement of their products as authorised dealer and that the defendants are not supplying their products. Accordingly, the present suit was filed with a prayer for ad-interim injunction which was granted by order dated 25-9-89. By the-said injunction, the defendants were restrained from terminating the dealership of the plaintiff and from adopting non-cooperative attitude towards the plaintiff and the defendants were further directed not to do anything prejudicial and detrimental to the plaintiff firm. Another direction was issued on the defendants to insert the name of the plaintiff-firm in their advertisement and also to send regularly the representative and technician to the show room of the plaintiff for taking orders for supplying the products and to attend to the complaints.
4. The opposite party No. 1 has filed an affidavit-in-opposition wherein he has stated that he looks after the entire business of the defendant No. 1 at Guwahati. According to the said opposite party, defendant No. 2 has no branch office at Guwahati considering the volume of transaction. However, they have got small office which is meant for persons holding clerical cadre only and he is associated in the said office at times for making only important, correspondences for defendant No. 2. It has been denied that defendant No. 2 is an associated company of the defendant No. 1 and it has been averred that they are two different companies. It has been denied that defendants wanted to terminate the dealership of the plaintiff for their products and that there is any policy decision that any dealer selling products under the brand name Videocon shall not be allowed dealership of ONIDA. Regarding violation of injunction order, it has been stated that the injunction order was received on 25-9-89 at 5.30 p.m. at the Branch office at Gauhati and at that time the opposite party NO. 1 was on tour and he attended the office only on 3rd October when he was informed about the injunction and he immediately contacted other defendants. It has been further denied that there was any violation of the injunction order inasmuch as the defendants did not stop sending technician to the show room of the plaintiff. Regarding advertisement, it has been stated that each dealer has to contribute a percentage of cost of advertisement and instead of repeated requests the plaintiff did not give consent. In the reply to the counter, the plaintiff has asserted that initially it was agreed that for all such advertisements the plaintiff would bear the proportionate cost as stated in the affidavit. Regarding the particular advertisement which appeared in the ‘Sentinel’ on 2nd October, vide Annexure-‘C’ to the present petition, it has been stated that opposite party No. 1 directed the agency to insert the name of the plaintiff but it could not be done for want of time. According to opposite party No. 1 supply orders for the products of the defendants are sent to his office along with Draft/Cheque by the authorised dealers and goods are supplied subject to availability of stock. It has been alleged that the plaintiff did not place any such order along with payment. There is an allegation that the plaintiff paid a sum of rupees one lakh and odd which has been denied by the opposite party No. 1. According to opposite party No. 1, the plaintiff-petitioner did not allow any access to their engineers and technician to the complaint book maintained by the plaintiff which caused difficulties. I need not go into further detail of the allegations and counter-allegations for the present purpose.
5. The first point that has been urged is that for violation of injunction, remedies are provided in the Civil Procedure Code itself and, as such, the present petition is not maintainable.
6. From the order dated 26-9-89 passed by the Division Bench in Civil Original Petition (Contempt) 75/88, I find that the petition was filed directly to this court alleging violation of an injunction passed by the learned Munsiff. The matter was referred to the Division Bench as a point was raised as to whether such a petitioner was maintainable for disobedience of an order passed by the Subordinate Court. It was urged before the learned single Judge that cognizance of such matters can be taken only on a reference made by the subordinate Court to this Court.
7. The Division Bench considered Rules 3, 5 and 9 of the Rules framed by this Court, namely, Contempt of Courts (Gauhati High Court) Rules 1977. Sub-rule (1) of Rule 3, inter alia, provides that every petition, reference or motion for taking proceeding under the Contempt of Courts Act, 1971 shall be registered as Civil Original Petition (Contempt) in respect of Civil Contempt and Criminal Original Petition (Contempt) in respect of Criminal Contempt. Sub-rule (1) of Rule 5 provides that every reference relating to Contempt of Courts, subordinate to the High Court, shall be scrutinized by the Registrar who shall place the same before the Chief Justice or any other Judge nominated by him in this behalf for obtaining orders after noting thereon the nature of contempt. Rule 9 runs as follows :
9. In the case of civil contempt other than a contempt referred to in Section 14, the High Court may take action–
(a) on its own motion; or
(b) on a petition presented by the party aggrieved; or
(c) in the case of any Civil Court by a subordinate Court on a reference to it by that Court.
8. Regarding Rule 5, the Division Bench was of the opinion that just because no reference has been made it cannot be held on the language of Rule 9 that cognizance could not have been taken on a petition presented by the party aggrieved. Regarding Rule 9, it was held as follows :–
The three modes of which reference has been made in Rule 9 being disjunctive and being independent we are of the view that cognizance in the case like the one at hand can also be taken on a petition presented by the party aggrieved. Rule 5 would come in operation only when the matter is referred under Rule 9(c) and not otherwise….
9. Mr. D.N. Chaudhury, learned counsel for the opposite parties has drawn my attention to a decision of Allahabad High Court in Smt. Indu Tewari v. Ram Bahadur Chaudhury wherein after considering Section 12 of the Contempt of Courts Act, Order 39, Rule 2A and Order 21, Rule 32, Civil Procedure Code, it was held that it would not be a proper exercise of discretion on the part of the High Court to exercise its jurisdiction under the Contempt of Courts Act when such an effective and alternative remedy is available to any person. Mr. Chaudhury has also placed reliance on Ruddraiah v. State of Karnataka wherein it was held that it is a well settled principle of law that when there is special law and general law, the provisions of the special law prevail over the general law and when special procedure and special provision is contained in the C.P.C. itself under Order 39, Rule 2A for taking action for the disobedience of an order of injunction, the general law of contempt of Court cannot be invoked.
10. In view of the above ratio laid down by the Division Bench of this Court, I am of the opinion that a petition for violation of injunction issued by the subordinate court can also be taken cognizance of by this Court in view of the aforesaid Rule 9 which applies in case of Civil Contempt other than a contempt referred to in Section 14 of the Contempt of Courts Act, 1971. I may also add here that if there are disputed facts, this Court is not the proper forum and parties should go and agitate the matter before the subordinate court as question of adducing evidence and appreciation of evidence on record would be necessary.
11. In the case in hand, the opposite parties have categorically stated that the defendants have no intention to terminate the dealership of the plaintiff in respect of their products sold under the brand name ‘ONIDA’.
12. In view of above position. I propose to pass an interim order as in my opinion the injunction order passed by the subordinate court must be obeyed and this court has a duty to see that it is so obeyed.
13. As the date of knowledge of injunction by the opposite party No. 1 is disputed, this fact has to be decided by taking evidence. Similarly, as regards the amount alleged to have been paid by the plaintiff and non-supply of goods by the defendants to the plaintiff, I leave the parties to agitate the same before the learned subordinate court for passing necessary orders in accordance with law.
14. In view of the following undisputed fact, namely, the defendants do not want to cancel the dealership of the plaintiff in respect of their products and that the plaintiff has also agreed to share the cost of advertisement in the newspaper showing the name of the plaintiff as dealer of goods of the defendants, as an interim measure, I direct that :
a) the opposite party No. 1 shall issue an advertisement within a period of 15 days from today in a local daily/newspaper/published from Guwahati showing the name of the plaintiff as their authorised dealer. It is needless to say that the plaintiff shall share the proportionate cost as agreed to:
(b) the plaintiff shall place orders of the goods required and the opposite party No. 1 shall indicate the amount to the plaintiff within 3 days of receipt of such request including the probable date of delivery and on receipt of amount by Draft/Cheque, the goods shall be supplied to the plaintiff within the time as aforesaid.
(c) Copies of the correspondences shall be sent to learned Munsiff who shall, if necessary, pass appropriate orders.
15. With the above direction, the petition is disposed of. Liberty is given to the plaintiff to agitate further before the learned Munsiff regarding alleged violation of the injunction order.
16. Before parting with the records, I may state that I asked the parties to compromise the matter in the interest of both the manufacturer and the dealer and also of the general public. I hope and trust that the parties will compromise as in my opinion, the present dispute has arisen because of clash of personalities which can easily be sorted out.
17. I leave the parties to bear their respective costs.
