TMI Blog2022 (3) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... aving a serious consequence. The stand taken by the respondents now that they are not in a position to deposit the amount and/or comply with the order passed by the High Court and this Court because of the financial difficulties and therefore there is no wilful disobedience by the respondents in not complying with the order passed by the High Court dated 08.08.2019 and the order passed by this Court dated 28.10.2021 in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021 lacks bonafides and the same is not at all acceptable. The respondents have willfully disobeyed the order passed by the High Court and have willfully disobeyed the order dated 28.10.2021 passed by this Court in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021 and thereby the respondents are guilty of civil contempt and have rendered themselves liable for suitable punishment under the provisions of Contempt of Courts Act. - M.R. Shah, J. For the Appellant : Puneet Singh Bindra For the Respondent: None JUDGEMENT 1. The present contempt petition has been filed by the petitioner herein Urban Infrastructure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act of 1996 challenging the award was made, the Award Creditor had filed the execution petition before the High Court being Commercial Execution Application No. 2908 of 2018. After the order was passed by the learned Single Judge dated 08.08.2019, a Notice of Motion No. 960 of 2019 was filed. The learned Single Judge being the Executing Court passed the order dated 18.11.2019 in the Chamber Summons No. 357 of 2019 taken out by the Award Creditor. The learned Single Judge directed the respondent herein to file the disclosure affidavit declaring their assets vide order dated 18.11.2019. The order dated 18.11.2019 was, however, not complied with by the respondents and repeated extensions were sought. 2.5 That in the meantime, respondents herein instituted Commercial Appeal No. 521 of 2019 challenging the order dated 08.08.2019 by which, while staying the award passed by the learned Arbitrator, the High Court directed them to deposit 50% of the awarded amount. It is required to be noted that during the pendency of the Commercial Appeal No. 521 of 2019, the respondents herein i.e., the contemnors appellants before the High Court prayed for a number of extensions to deposit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court and also having serious consequences. 2.9 Despite the specific directions issued by this Court, the respondents neither complied with the order passed by the High Court dated 08.08.2019 nor complied with the order passed by this Court dated 28.10.2021 in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021. 2.10 That the applicant herein served a legal notice upon the respondents dated 16.11.2021 by which the respondents were called upon to comply with the order dated 08.08.2019 passed by the High Court as well as the orders passed by this Court dated 17.09.2021 and 28.10.2021. In the said legal notice, it was specifically mentioned that if the aforesaid orders are not complied with, the petitioners shall be constrained to proceed further to initiate appropriate proceedings for wilful disobedience of orders passed by the Court. One other legal notice was served upon the respondents informing that the time granted by this Court in Special Leave Petition (C) No. 14724 of 2021 to comply with the order dated 08.08.2019 had expired. Despite the above, neither the order passed by the High Court dated 08.08.2019 was complied with nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by the respondents extended the time to comply with the order dated 08.08.2019 passed by the learned Single Judge. It is submitted that the said order dated 08.08.2019 was an interim order passed on Notice of Motion by which, while granting stay of the award passed by the learned Arbitrator, the respondents were directed to deposit 50% of the amount awarded. It is submitted that in the order dated 08.08.2019 itself, the learned Single Judge specifically observed that on non-compliance of the same, the interim stay granted would stand vacated. It is contended that by not deposing 50% of the awarded amount within the stipulated period of time and the extended period of time, there shall not be any stay of the award passed by the learned Arbitrator and therefore the said award shall be executable and the execution proceedings are required to be heard and proceeded further. It is therefore urged that non-compliance of the order dated 08.08.2019 does not warrant any proceedings under the Contempt of Courts Act, 1971, as the order dated 08.08.2019 cannot be said to be a mandatory order or a direction to deposit 50% of the amount awarded. It is also submitted that the order dated 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time granted by this Hon ble Court, the respondents have been unable to comply with the condition of deposit in view of the grave and unsurmountable challenges / difficulties being faced by the respondents. 3.7 It is further submitted that the dispute is in the nature of a commercial dispute and negotiations are going on and final figures are to be settled. That the respondents have already given a demand draft of Rs. 5 crores to show their bonafides and are ready to submit a further sum of Rs. 5 crores with the Registry of the High Court. It is submitted that therefore, when there is no wilful disobedience, the present contempt proceedings be dismissed. Reliance is placed upon the decisions of this Court in the case of Mrityunjoy Das and Anr. Vs. Sayed Hasibur Rahaman and Ors., (2001) 3 SCC 739 (Paras 13 14); Ram Kishan Vs. Tarun Bajaj Ors., (2014) 16 SCC 204 (Paras 11 to 15); Dinesh Kumar Gupta Vs. United India Insurance Company Limited Ors., (2010) 12 SCC 770 (Para 17); Jolly George Varghese Anr. Vs. The Bank of Cochin, (1980) 2 SCC 360 (Paras 1, 2, 4, 6, 10 11); and Dr. U.N. Bora, Ex. Chief Executive Officer Ors. Vs. Assam Roller Flour Mills Association ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication No. 61 of 2022 in which the very respondents have stated that the order dated 28.10.2021 is a mandatory order/direction. It is submitted that by taking such a stand, the respondents have aggravated their contumacious conduct. 4.4 Now, so far as the submission on behalf of the respondents that, the order passed by the learned Single Judge dated 08.08.2019 and the subsequent order passed by this Hon ble Court dated 17.09.2021 cannot be said to be a direction and if there is non-compliance of the same, the consequences under Section 36 of the Act of 1996 shall follow and the award thereafter will have to be executed, it is vehemently submitted by Shri Jayant Bhushan, learned Senior Advocate appearing on behalf of the petitioner that the non-compliance alleged is not only of the order dated 08.08.2019 passed by the learned Single Judge of the High Court and the order dated 17.09.2021 passed by this Hon ble Court but the non-compliance alleged is of the order dated 28.10.2021 also by which the specific mandatory direction has been issued by this Court directing the respondents to deposit the amount as ordered by the learned Single Judge. It is submitted that in the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, we see no reason to interfere with the impugned order. The Special Leave petition is dismissed. Pending application(s), if any, shall stand disposed of. However, as prayed, we grant further eight weeks time from today to the applicants to comply with the impugned order passed by the High Court. Order dated 28.10.2021 Having heard Shri Jayant Bhushan, learned senior counsel appearing on behalf of the respondent no. 1 herein/Applicants -Urban Infrastructure Real Estate Fund and Shri Kunal Vajani, learned counsel appearing on behalf of the original petitioners before this Court, we dispose of the present application with an observation that the petitioners before this Court in SLP (C) No. 14724/2021 shall have to comply with and deposit the amount to be deposited as per the impugned order passed by the High Court positively and within the time granted by this Court and noncompliance of the same shall be treated very seriously and non-deposit of the amount as directed by the High Court in the impugned order shall be treated as non-compliance of our order also having a serious consequences. With this, the present application stands disposed of. 7. It is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents took the benefit of the extensions granted by the Court and the respondents were granted the extension of time to make the deposit as per the order dated 08.08.2019, which were granted on their requests. Having taken the benefit of the extensions for a period of approximately two years and more, thereafter, it is not open for the respondents to contend that since they have not deposited the amount as per the order dated 08.08.2019, necessary consequences under Section 36 of the Act of 1996 shall follow and the execution proceedings have to be proceeded further. As observed hereinabove, the execution proceedings have been delayed in view of the interim order dated 08.08.2019 and the subsequent extensions granted by the High Court, which were at the behest of the respondents. The respondents herein have had the benefit of extensions of time being granted for depositing the amount as per order dated 08.08.2019 and consequently have successfully obstructed the execution proceedings for over two years. Having done so, respondents cannot now be permitted to contend that there was no mandatory direction to comply with the order dated 08.08.2019 passed by the High Court. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the applicants, such a direction could not have been issued by this Court as passed vide order dated 28.10.2021. It is submitted, assuming that the applicants had not complied with the order passed by the High Court dated 08.08.2019, which was impugned before this Court, and the amount was not deposited even within the extended period of time, as extended by this Court, in that case, the only consequence would be that there was no stay of the arbitral award and that the execution proceedings are to be proceeded further. Therefore, the direction issued in order dated 28.10.2021 directing the applicants original petitioners to deposit the amount to be deposited as per the order of the High Court positively and within the time granted by this Court and non-compliance of the same shall be treated very seriously and non-deposit of the amount as directed by the High Court in the impugned order shall be treated as noncompliance of our order also having a serious consequences, was not at all warranted and/or such an order could not have been passed. 3. We have heard Shri Shyam Divan, learned Senior Advocate appearing on behalf of the applicants at length. At the outset, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the High Court was extended from time to time at the instance of the applicants herein but the applicants did not deposit the amount and prolonged the matter and even the execution of the award. That thereafter after getting extensions the applicants did not deposit the amount, belatedly, the applicants preferred the present special leave petition before this Court on 20.08.2021 with delay. Still, this Court condoned the delay ex-parte and granted further eight weeks time from 17.09.2021 to comply with the order passed by the High Court dated 08.08.2019, as prayed by the learned counsel appeared on behalf of the applicants. 6. As order dated 17.09.2021 was passed ex-parte and without notice to the respondent, respondent preferred M.A. No. 1668/2021 to recall order dated 17.09.2021 contending, inter alia, that all attempts are made on behalf of the applicants to delay the execution and even further eight weeks time was sought only to kill the time and there is no intention to deposit the amount and/or comply with order dated 08.08.2019 passed by the High Court. Therefore, having heard learned counsel for the respective parties and considering the apprehensions on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in the order dated 28.10.2021 directing the respondents to comply with and deposit the amount to be deposited as per the order passed by the High Court dated 08.08.2019 positively and within the time granted by this Court by order dated 17.09.2021 in Special Leave Petition (C) No. 14724 of 2021, the respondents have the audacity to submit before this Court that no direction has been issued by this Court in the order dated 28.10.2021. At this stage, it is required to be noted that even in the Miscellaneous Application No. 61 of 2022, it was the specific case on behalf of the respondents herein that by virtue of the order dated 28.10.2021, the condition of deposit has been converted into a mandatory direction of this Court. Therefore, it was the specific case on behalf of the respondents that the order dated 28.10.2021 is a mandatory direction and therefore it was prayed to recall the order dated 28.10.2021. Then, how thereafter the respondents can be permitted to say that the order dated 28.10.2021 is not a mandatory direction? By taking such a stand as such the respondents have aggravated the contempt and their contumacious conduct. 13. In the order dated 28.10.2021, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the judgment or order of which contempt has been alleged. We are of the view that this judgment would not, in any way, come to the aid of the respondent-contemnors because, in whatever manner the orders of which contempt is alleged, are viewed, the orders state in unequivocal terms that the contemnor is required to deposit the amount, within such period as specified in the respective orders. The scope of contempt, however narrow, would enable this Court to invoke jurisdiction under the Act to redress a situation such as the instant one, wherein the orders of which contempt has alleged, expressly and clearly record that the contemnor was required to deposit the amounts specified therein. This direction under the orders, could not be interpret in any other manner. ii) R.N. Dey Ors. vs. Bhagyabati Pramanik Ors. [(2000) 4 SCC 400] wherein this Court held that the weapon of initiating contempt proceedings could not be used for execution of a decree or implementation of an order. That is, a Court should not invoke contempt jurisdiction, where alternate remedies are available to secure the terms of an order. We are mindful of the fact that contempt proceedings should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the High Court dated 08.08.2019 and the order passed by this Court dated 28.10.2021 in Miscellaneous Application No. 1668 of 2021 in Special Leave Petition (C) No. 14724 of 2021. If the bonafides of the respondents were clear and they genuinely wanted to abide by the order passed by the High court and this Court, but could not deposit because of the financial difficulties, in that case, they ought to have straightaway pleaded their financial difficulties and ought not to have taken the stand, which was taken in Miscellaneous Application No. 61 of 2022 and even which are once again taken now. As observed hereinabove, even the respondents disclosed their assets after a period of approximately two years from the date of the passing of the order passed by the High Court in Chamber Summons. Therefore, we are of the opinion that the stand taken by the respondents now that they are not in a position to deposit the amount and/or comply with the order passed by the High Court and this Court because of the financial difficulties and therefore there is no wilful disobedience by the respondents in not complying with the order passed by the High Court dated 08.08.2019 and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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