B.M. Bhatracharjee & Anr Vs. Russel Estate Corporation & Anr  INSC
59 (4 February 1993)
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Kuldip Singh (J)
1993 AIR 1632 1993 SCR (1) 750 1993 SCC (2) 533 JT 1993 (2) 109 1993 SCALE (1)444
of Courts Act 1971:
12-Court's orde-Direction not to make further 'allotment' of flats--Breach of
order-Guilty of Contempt of Court-Punishment-Imposing of.
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.
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
the Respondent guilty of Contempt of Court, this Court,
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.
to the Respondents there was first an agreement of sale, then delivery of
possession and finally a registered 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]
far as the apology tendered by the second respondent is concerned it is not
really an unconditional apology.
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]
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]
APPELLATE JURISDICTION: Contempt Petition No. 159 of 1992.
Special Leave Petition (C) No. 12709 of 1991.
the Judgment and Order dated 26.4.1991 of the Calcutta High Court in Appeal No.
232 of 1990.
R. Mukhejee, J. Gupta and M.L. Chibber for the Petitioners.
Dutta, Mrs. N. Dutta, Mrs. Mridula Ray and M.N. Shroff for the Respondents.
Judgment of the Court was delivered by 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.
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.
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.
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
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.
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.
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.
report of the Receiver (Smt. Pratibha Bonnerjea, a retired Judge of the
Calcutta High Court who was appointed 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:
condition of these two flats in the floor.
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.
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. In as much 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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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:
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.
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
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.
the said contentions we have dealt with hereinbefore.
need not be reiterated here.
as the apology contained in para 3 of the second respondent's further affidavit
is concerned, it may firstly 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
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.