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Delhi High Court
State Bank Of India, New Delhi vs D.S. Dalal And Others on 17 July, 1981
Bench: J Jain


ORDER

1. This is an application by the State Bank of India under Art. 215 of Constitution of India read with S. 15 of the Contempt of Courts Act for initiating proceedings for contempt of court against the respondents S/Shri D. S. Dalal, Miss V. Singh and B. Singh, who are all advocates and are practicing as such in the firm name M/s. Singh & Co. Advocates.

2. The facts leading to this petition succinctly are that as far back as 3rd September, 1976, the petitioner State Bank of India instituted a suit for recovery of Rs. 82,543/17 p against M/s. Bharat Furnishing Co., a sole proprietary concern of Shri Tulsi Ram Singhal, who was imp leaded as defendant No. 2 and one Mahabir Prasad Gupta as guarantor for repayment of the loans advanced by the petitioner Bank to the defendants pursuant to the Cash Credit Facility granted by the plaintiff-Bank of defendants on 18th December 1970. Various loaning documents including demand promissory note and letter of hypothecation etc., were executed by the defendants in favor of the plaintiff-Bank by way of collateral security etc. The suit was instituted through M/s. Sing & Co. Advocates. Since, however, the original loan documents were not filed by the plaintiff along with the plaint, defendants 1 & 2 moved an application under O. VII R. 14, O. XI R. XIV and S. 151, Civil P.C. (Being I.A. 2146/77) on 23rd May, 1977, praying that the plaintiff-Bank be directed to produce the original loan documents which were in their possession and power and upon which reliance had been placed in the list of reliance filed along with the plaint, so that the defendants were in a position to file their written statement. Shri B. Singh, Advocate, who appeared on behalf of the Plaintiff-Bank took time to do the needful and the case was adjourned at his request twice or thrice. In the meanwhile, however, the plaintiff-Bank moved I.A. 3696/78 on 17th October, 1978, purporting to be under Chap. V R. 4 of Delhi High Court (Original Side) Rules read with S. 151 of the Civil P.C. for revocation of the authority on M/s. Singh & Co. Advocates. It was, inter alia, averred that the original loan documents numbering six in all had been entrusted to Shri B. Singh, Advocate, prior to the institution of the suit on 19th August 1976, but the same had been neither filed in Court nor returned by Shri Singh despite service of notice dated 22nd September 1978, sent under Certificate of Posting/registered A.D. post calling upon him to hand over the original documents so as to enable the plaintiff to proceed further with the prosecution of the suit. Notice of the said application was directed to be issued to Shri B. Singh, Advocate, which was eventually served on him on 18th April 1979 for 3rd May, 1979, but Shri Singh did not turn up on that date. Thereupon the Deputy Registrar (J) before whom the case was then listed directed that I.A. 2146/77 be listed before the Court on 14th May, 1979. My learned brother Sultan Singh, J. while taking note of this fact directed that a fresh notice of I.A. 3696/78 be issued to Shri Singh for 26th July, 1979 and he be directed to appear in person with the documents detailed in the application. Strangely enough Shri Singh who happens to be an advocate of this Court could not be served personally despite repeated attempts having been made. Eventually, therefore, an order was made by Sultan Singh, J. on 6th November 1979 that he be served by affixation of notice on outer gate of his office in case it was not possible to serve the notice personally on him. Accordingly service was effected on Shri Singh by affixation on 27th November 1979 for appearance on 4th December 1979. However Shri Singh failed to turn up even on that day. Finding himself in this predicament Shri Mahinder Narain, the present counsel for the plaintiff-Bank, moved the present contempt petition against all the three respondents who constitute the firm M/s. Singh & Co. Advocates. It has been emphasised by the plaintiff that the original documents which are still lying in the custody and power of the respondents are essential for the effective prosecution of the said suit, but the respondents have failed to deliver up the same to the plaintiff dispute service of notice of I.A. 3696/78 on Shri B. Singh personally for 3rd May, 1979, service of order dated 14th May, 1979 of Sultan Singh, J. for 4th December, 1979 by affixation on their office. Thus, according to him, the respondents are guilty of repeated and willful disobedience of the summons issued by the Court for the presence as well as the order for production of the documents.

3. Notice of this contempt petition was served on Shri D. S. Dalal, Advocate-respondent No. 1 on 8th March 1980 for 20th March 1980, but he failed to enter appearance. He was again served for the next date of hearing, viz., 16th April 1980, but he again failed to turn up. The other respondents had then to be served by affixation which yielded the desired result. Shri B. Singh put in appearance in person on 14th May, 1980. While admitting that the original documents which had been given to him by the plaintiff-Bank were lying with him he stated that he would produce the same on the next date of hearing. He, however, submitted that none had cared to collect those documents from him. However, he failed to bring the documents on the adjourned date of hearing viz., 22nd May, 1980, on the pretext that some official of the plaintiff-Bank had contacted him on the day before in order to collect the documents personally but he was told to bring a receipt for delivery of documents duly signed by the concerned Bank Manager. However, he gave an undertaking to file all the documents in the Registry or on any date between 26th May and 31st May, 1980, provided, of course, the plaintiff did not collect those documents from him against a valid receipt before 26th May, 1980. In view of this undertaking the case was adjourned to 24th July, 1980, with a direction that reply to the Criminal Contempt Petition be filed by 18th July, 1980. On 24th July, 1980, Shri Singh stated that he had filed all the documents in the Registry through his clerk. But those documents did not form part of the record. On the adjourned date of hearing, viz., 30th July, 1980, Shri Singh explained that the documents had been filed by him in Court, which were duly checked by Shri Mahinder Narain, counsel for the plaintiff. However, the case was adjourned to 11th September 1980, at his request for filing reply to this application. On that day, he absented himself. So arguments of the plaintiff’s counsel were heard in his absence.

4. Contempts have been classified into two categories which have been broadly designated civil and criminal contempts – the former comprising those cases where the power of the court is invoked and exercised to enforce obedience to the orders of the court and the latter where the act of the contemner is calculated to interfere with the course of justice including libels or insults to the Judges and publications prejudicing the fair conduct of proceedings in court. Both these concepts have now been statutorily defined in Section 2 of Contempt of Courts Act, 1971 (for short the Act). Civil Contempt, as per the said definition, means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking to the court. Thus, this definition is a statutory recognition of the concept of a civil contempt evolved by judicial decisions, emphasis evidently being laid on the disobedience being “willful”. By and large action for civil contempt is remedial in nature, in that, the object is primarily to enforce compliance with the order or direction made by the court for the benefit of the party in whose interest such an order is made. If, however, the contemner adds defiance of the court to disobedience of the order and conducts himself in a manner which amounts to obstruction to or interference with the course of justice, the contempt committed by him is of a mixed character partaking as between him and his opponent of the nature of a civil contempt and as between him and Court or the State of the nature of a criminal contempt. As elucidated in para 54 of Halsbury’s Laws of England, 4th Edn. Vol. IX.

“54. Where misconduct involved. The circumstances involving misconduct, civil contempt bears a two fold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the Court in the public interest.”

5. Having regard to the foregoing sequence of events, it would apparently appear that M/s. Singh & Co. Advocate especially, Shri B. Singh, Advocate, to whom the original loan documents were entrusted by the plaintiff-Bank not only did not file those documents along with the plaint as required by the provisions of the Civil P.C. but he did not produce the same for over three years when called upon to do so by defendants 1 and 2 by means of I.A. 2146/77. It was notwithstanding the fact that on 14th November 1977, Shri B. Singh was granted four weeks’ time to file the original documents as prayed by him and I.A. 2146/77 was adjourned to 20th January 1978. However, Shri Singh failed to comply with the said order and on 20th January 1978, he gave a fresh undertaking that he would be filing the documents in terms of order dated 14th November 1977, in the Registry within ten days. A direction was accordingly made by this Court and the aforesaid I.A. was adjourned to 15th February 1978. However, Shri Singh, for reasons best known to him, asked for two weeks’ more time to file the documents in terms of undertaking given on 20th January 1978. Even then, he did not do the needful and again on 20th March 1978, he assured the Court that he would be filing the original documents in terms of the undertaking already given by him after the decision of I.A. 3253/77 which was moved by the plaintiff-Bank in the meantime for revocation of power of attorney issued by the Bank in favor of some other advocates, namely, S/Shri Brij Bans Kishore, D. P. Sharma & Manoj Verma. Eventually I.A. 3253/77 was disposed of vide order dated 11th September 1978 of Sultan Singh, J. However, it would appear that M/s Rajinder Narain & Co. took over the brief from M/s. Singh & Co. Advocated in the meantime and, therefore, Shri B. Singh did not appear on behalf of the plaintiff-Bank subsequent to 5th May, 1978. Since the original documents were in the power and custody of Shri B. Singh, it was, in my view, incumbent upon him to have produced the same in Court pursuant to the undertaking given by him repeatedly as an officer of the court notwithstanding the fact that he had ceased to be the plaintiff’s counsel. It was all the more imperative for him to do so when he was called upon by the plaintiff-Bank vide notice dated 22nd September 1978, to deliver up the documents. However, it seems that he conveniently forgot about his obligation to the Court in this behalf and withheld the documents so essential for further prosecution of the plaintiff’s case despite service of notice of I.A. 3696/78 on him personally for 3rd May, 1979. It should have surely served as a reminder to him of the legal obligation under which he had put himself to the Court. However, for reasons best known to him, and which he has not chosen to explain even after his appearance in court, he absented himself, quite unmindful of the grave consequences which might flow from his contumacious conduct in not delivering up the documents to the Court. Even then my learned brother Sultan Singh, J. thought it fit to afford another opportunity to him and issued a fresh notice with a specific direction requiring to appear in person in Court along with the documents. It is indeed lamentable that all attempts to serve Shri B. Singh with fresh notice containing said direction proved abortive despite repeated visits of Process Server and eventually service had to be effected by affixation at his office for 4th December 1979, but even then he did not turn up. Evidently feeling exasperated the plaintiff-Bank was compelled to move this application. But even then Shri B. Singh put in appearance as late as 14th May, 1980, although his partner in the profession Shri D. S. Dalal, Advocate, had been served personally twice once for 20th March 1980 and again for 16th April 1980. So, it can be safely presumed that Shri B. Singh was well aware of the contempt proceedings as also the earlier order made by Sultan Singh, J. Even after appearing in Court he tried to dilly-dally and produced the documents after more than two months of his undertaking given on 15th May, 1980. Thus, failure on his part to comply with the solemn undertaking repeatedly given by him to court to produce the original documents and to comply with the said directions of the court duly served on him cannot be said to be accidental or unintentional. Ex facie, therefore, it would appear to be deliberate and willful so as to constitute civil contempt. Needless to say that this intransigence on the part of Shri Singh has hampered and delayed the progress of the suit by more than three years.

6. A question may pertinently arise that the principal object of a civil contempt being to secure the enforcement of the order and the order in question having been duly complied with, will it be still desirable or necessary in the interest of justice to proceed against the respondents by way of contempt ? On a consideration of all the circumstances, especially contumacious disregard of the direction and orders of this court including the undertaking given by Shri B. Singh in the court, I think interests of justice demand that punitive action is called for. In the words of Salmon, L.J. :

“The inherent power of the Judges of the High Court to commit for contempt of court has existed from time immemorial. ‘Contempt of court’ is an unfortunate and misleading phrase. It suggests that it exists to protect the dignity of the Judges. Nothing could be further from the truth. The power exists to ensure that justice shall be done. And solely to this end it prohibits acts and words tending to obstruct the administration of justice. The public at large, no less than the individual litigant, have an interest, and a very real interest in justice being effectively administered. Unless it is so administered, the rights, and indeed the liberty, of the individual will perish.”

(See Jennison v. Baker, (1972) 1 All ER 997 (1001)).

7. In that case the landlord completely ignoring the prohibitory orders passed by the Court resorted to other means possible, short of physical force, to get the tenants out of the house. As a result, all the tenants left and it was indicated at the hearing that they would not return. An application was made for an order of attachment committing the landlord to prison for having disobeyed the order on the grant of interim injunction. The County Court Judge awarded the tenant damages and ordered the landlord to be put to prison for contempt. On appeal by the landlord, it was, inter alia, contended that the County Court Judge had no jurisdiction to commit to prison for breach of an injunction in the circumstances where the injunction could no longer be of any effect, for the committal would not then be deterrent against further breaches of the injunction but would merely be a punishment. This contention was repelled by the Court of Appeal, who held that the fact that the landlord was liable to committal was an essential part of the remedy granted and it would not have been “full and ample” unless the order for committal could be made in the County court. Said Salmon, L.J. :

“Of course an injunction is granted and enforced for the protection of the plaintiff. The defendant who breaches it is sent to prison for contempt with the object of vindicating (a) the rights of plaintiffs (especially the plaintiff in the action) and, (b) the authority of the court. The two objects are, in my view, inextricably intermixed.”

(See also in this connection Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd., (1963) 3 All ER 493).

8. In the Aligarh Municipal Board v. Ekka Tonga Mazdoor Union, , the Supreme Court also observed :

“Contempt proceeding against a person who has failed to comply with the Court’s order serves a dual purpose; (1) Vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemner to do what the law requires of him. The sentence imposed should effectuate both these purposes. To employ a subterfuge to avoid compliance of a court’s order about which there could be no reasonable doubt may in certain circumstances aggravate the contempt.”

9. To sum up therefore, it is ex facie a fit case for initiating contempt proceedings against Shri B. Singh, Advocate, if not against other respondents because it was he who was entrusted with the original documents by the plaintiff-Bank and who apparently defied not only the orders of the Court but committed breach of the undertaking given by him to the Court repeatedly. Hence, rule nisi be issued to the respondent Shri B. Singh, Advocate, to show cause why he should not be punished for committing contempt of court, returnable by 10th August 1981.

10. Having regard to the past experience of this Court with regard to the genuine difficulty in serving him and also his conduct in absenting himself even after taking time to file reply to this petition, I consider it appropriate that along with show cause notice bailable warrant of arrest is issued in the first instance to secure his presence in person. Hence, bailable warrants of arrest be issued in the sum of Rs. 1,000/- (rupees one thousand only). Of course his personal bond be accepted by the official executing the warrant.

11. Order accordingly.


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