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TMI Blog2023 (9) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 802 - SUPREME COURT ], the expression wilful disobedience in the context of Section 2(b) of the Act was read to mean an act or omission done voluntarily and intentionally with the specific intent to do something, which the law forbids or with the specific intention to fail to do something which the law requires to be done. Wilfulness signifies deliberate action done with evil intent and bad motive and purpose. It should not be an act, which requires and is dependent upon, either wholly or partly, any act or omission by a third party for compliance. Hence, the expression or word wilful means act or omission which is done voluntarily or intentionally and with the specific intent to do something which the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Whether the statement made by the learned counsel before the High Court was an undertaking on behalf of his clients and if yes then whether such undertaking could be said to have been given to the court, we must look into two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Although Section 52 of the Act 1882 does not render a transfer pendente lite void yet the court while exercising contempt jurisdiction may be justified to pass directions either for reversal of the transactions in question by declaring the said transactions to be void or proceed to pass appropriate directions to the concerned authorities to ensure that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him - The High Court declared all the sale deeds executed by the contemnors in favour of the purchasers as non est. The High Court ordered that the sale deeds stand cancelled and set aside. The contemnors were directed to restore the position which was prevailing at the time of the order dated 14.10.2015 passed by the High Court - the High Court was fully justified in declaring the sale deeds as non est or void. Impleadment of purchasers as necessary parties - whether the clients of Mr. Shyam Divan i.e., purchasers should have been impleaded as party respondents in the contempt proceedings before the High Court and whether they should have been heard before passing the final order? - HELD THAT:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. In the case of Sevakram [ 1999 (8) TMI 1024 - GUJARAT HIGH COURT] , it was held that an apology neither purges nor washes away the act of contempt and at best it is a mitigating circumstance while considering the consequential order following finding of contempt having been committed. The law is very clear that the court should not get compassionate and dilute an indictment and not follow it with conviction. The fact that the appellants have committed contempt is not in doubt. The law enjoins that a punishment must follow. All the three appeals fail and are hereby dismissed. - J.B. Pardiwala And Manoj Misra, JJ. For the Appellant : Mr. Mihir Joshi, Sr. Adv., Mr. Shamik Shirishbhai Sanjanwala, AOR, Mr. Shantanu Parmar, Adv., Mr. Mukul Rohatgi, Sr. Adv., Mr. Vanshdeep Dalmia, AOR, Ms. Natasha Dalmia, Adv., Ms. Devanshi Singh, Adv., Mr. Shivam Pundhir, Adv., Ms. Anisha Jain, Adv., Mr. Soumik Ghosal, AOR. For the Respondent : Mr. Arijit Prasad, Sr. Adv., Mr. Nachiket A. Dave, Adv., Mr. Pradhuman Gohil, Adv., Mrs. Taruna Singh Gohil, AOR, Ms. Ranu Purohit, Adv., Mr. Alapati Sahithya Kris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MPT OF COURTS ACT, 1971 4. The appellants of the two statutory appeals have been held guilty of contempt by the High Court of Gujarat for their deliberate and wilful disobedience of the undertaking given to the concerned Court, which came to be recorded vide order dated 14.10.2015 passed in the Special Civil Application No. 16266 of 2013. The impugned order passed by the High Court holding the appellants guilty of contempt dated 13.07.2022 came to be passed in the Misc. Civil Application No.121 of 2018 filed by the respondents herein in the Special Civil Application No. 16266 of 2013. 5. The operative part of the impugned order passed by the High Court reads thus: ORDER (i) We hold that accused Nos. 3.1 to 3.4 and accused No. 4 guilty of Contempt for their deliberate and wilful disobedience of the undertaking given to this Court which came to be recorded by order dated 14.10.2015 passed in Special Civil Application No. 16266 of 2013. (ii) We impose cost of Rs. 1,00,000/- (Rupees One Lakh only) on accused Nos. 3.1 and 3.2 in lieu of sentencing them to imprisonment and in addition direct them to pay fine of Rs. 2,000/- (Rupees Two Thousand only) each and the amount of fine shall be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of four weeks from today. Accordingly, we grant stay of this judgment for a period of four weeks from today subject to accused Nos. 3.1 to 3.4 and accused No. 4 depositing of fine amount and costs as ordered hereinabove before this Court within two weeks from today. 6. It all started with an order passed by a learned Single Judge of the High Court dated 14.10.2015 in the Civil Appeal No. 11412 of 2015 in the Special Civil Application No. 16266 of 2013 referred to above. The order dated 14.10.2015 referred to above reads thus: It is stated at the Bar by Mr. Sanjanwala learned senior advocate, on instructions from his clients, that the property qua the subject matter of this entry and the petition, shall not be sold out till the main petition is heard and decided, which satisfies the conscious of Mr. Mihir Thakor learned senior advocate appearing with Mr. Prabhav Mehta learned advocate and he states that he may not press the Letters Patent Appeal, on instructions. Hence, this Civil Application stands disposed of accordingly. It goes without saying that the order was passed adinvitum/by consent of the learned advocates. (Emphasis supplied) 7. Thus, it appears that a statement wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fair idea as to how the High Court dealt with the contempt proceedings. The High Court first took notice of the various sale deeds that came to be executed by the appellants herein between 09.11.2015 and 30.10.2018, which were in wilful disobedience of the undertaking given to the High Court. The details are as under: No. Index Page No. Name of the Party Plot No. Plot area Consideration Consideration as per Index Value Sale Deed date 1 157 Jagdish Chug 79 118.48 103115/- 568704/- 9-11-15 2 158 Rama Rani 80 118.48 103115/- 568704/- 9-11-15 3 159 Prakash Kundu 199A 118.48 8500/- 568704/- 19-2-16 4 160 Prakash Kundu 199B 118.48 8500/- 568704/- 19-2-16 5 161 Prakash Kundu 200 118.48 8500/- 568704/- 19-2-16 6 162 Mafatlal Kalidas HUF 122B (56) 118.48 8500/- 568704/- 15-3-16 7 163 Mafatlal Kalidas HUF 122C (55) 118.48 8500/- 568704/- 15-3-16 8 164 Sudesh Dingra 27 152 8500/- 729600/ 17-5-17 9 165 Shilpi Ravi 27A 152 8500/- 729600/ 17-5-17 10 166 Roshan Lal 28 152 8500/- 729600/ 17-5-17 11 167 Sami Kumar 176 118.48 8500/- 568704/- 25-7-17 282730/- 6738432/- 2 Sale deeds done / added afterwards 12 518 Trilokram Mali Shop No. 7 19.26 49000/- 298530/- 30-10-18 13 555 Yogesh Kumar Patel 175 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Survey Nos.63 and 65 would not be sold and yet the same has been sold by respondent Nos. 3.1 to 3.4 through their power of attorney holder 4th respondent. Had this undertaking not been given obviously respondents in Special Civil Application No.16266 of 2013 who were the appellants in Letters Patent Appeal (Stamp) No.1196 of 2015 would not have withdrawn the appeal as not pressed. It is this undertaking given to this Court on 14.10.2015 which prevented the applicants herein to withdraw the said appeal and it is this solemn assurance given to the Court which per-forced them to withdraw the appeal by recording the statement made by the learned Senior Counsel appearing on behalf of respondent Nos.3.1 to 3.4 and 4th respondent. (Emphasis supplied) 15. In para 33, the High Court took notice of the fact that the contemnors Nos. 3.1 to 3.4 had not disputed the execution of the power of attorney in favour of the 4th contemnor; they had not denied the execution of the sale deeds; they had not even denied having received the benefit under the sale deeds; and they had also not denied that the power of attorney was not cancelled. The High Court also took notice of the fact that the explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and in the same breath he has deposed that all the members of the family were aware of the order dated 14.10.2015 passed by this Court. Insofar as rejoinder affidavit to the reply affidavit filed by respondent No.3.2, complainants have specifically contended that respondent No.3.2 was very well aware of the order dated 14.10.2015 and same is the statement made in the rejoinder affidavit filed against the reply filed by respondent No.3.3 and 3.4. It is also contended that sale consideration depicted in the Sale Deeds are farce and to overreach the order of the Court less consideration has been reflected as against the real value. To highlight this aspect in paragraph 6(c) the complainants have contended at the relevant point of time the Jantri value of the subject land was Rs.4,800/- per sq.mtr. and the consideration depicted in the Sale Deed is at Rs.8,500/-. It is also stated that consideration for the sale transaction for 118.80 sq. mtrs. of land and for the land sold to the extent of 152.00 sq. mtrs. are similar and hence the complainants contend that respondent No.4 maliciously sold the subject property at under value rate and has caused huge loss to the public exchequer. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have received the consideration money and we had handed over the possession. The said fact is also mentioned in the sale deed. (Emphasis supplied) 19. In para 40, the High Court took notice of the fact that even after notice was issued to the contemnors in the contempt proceedings, they continued to commit further acts contempt. Para 40 reads thus: 40. The accused have continued to commit further contempt. We say so for the reason that additional affidavit dated 06.04.2019 filed by complainant No. 1.1 enclosing the sale deed dated 30.10.2018 would clearly disclose that accused no. 4 on behalf of himself and also on behalf of accused no. 3.1 to 3.4 had sold shop bearing No. 7 admeasuring 19.2 sq. mtrs. in the land bearing Survey No. 63 which land was also agreed not to be sold by way of undertaking given to this Court on 14.10.2015. Additional affidavit dated 18.07.2019 has been filed by complainant No. 1.1 which discloses another portion of land admeasuring 118.48 in Survey No. 63 has been disposed of vide sale deed dated 25.07.2017. Respondent No. 4 who had been examined as a witness in Special Civil Suit No. 130 of 1995 in his deposition (Annexure B-2) has admitted that he was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 are attempting to improve their case step by step and stage by stage and tendering apology without any real contrition and same not being from the heart but offered as a lip sympathy to stave off the consequences that would flow from their contemptuous act, the affidavit of apology has been filed. Had there been real remorse, they would have on notice of contempt being served, forthwith cancelled the power of attorney executed in favour of accused no. 4. However, they have not chosen to do so. On the other hand, they have allowed him to continue to perform duties as their agent and derived benefits out of it, which discloses there is no real contrition expressed by them which would satisfy the Courts' conscious. (Emphasis supplied) 21. The High Court thereafter, proceeded to consider whether the contempt proceedings were time barred. The High Court looked into Section 20 of the Act 1971 and took the view that the cause of action was recurring in nature and the wrong had continued. The proceedings initiated were not barred under Section 20 of the Act 1971. 22. In the last, the High Court recorded what had happened on the date when the contemnors remained present in the court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 respectively filed by the appellants state to the contrary that they were not aware of the order dated 14.10.2015. (c) The High Court should have accepted the unconditional and bona fide apology made at the first instance. The High Court went wrong in saying that the apology was tendered at a belated stage. (d) Section 12 of the Act 1971 stipulates the punishment for contempt of Court. The proviso to the said section states that accused may be discharged or punishment awarded may be remitted on apology being made to the satisfaction of the court . Furthermore, the Explanation to the said proviso states that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. (e) The High Court committed a serious error in not accepting the explanation offered by the appellants that the sale deeds had already been completed prior to the order dated 14.10.2015 and only formal registration of the sale deeds was left. (f) The High Court committed error in recording that the properties were sold even after the notice of contempt was issued to the appellants. 26. In support of aforesaid submissions, the learned Senior Counsel pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking to the court. This distinction is well known and accepted by Courts and the contempt application ought to have been dismissed as not maintainable only on this ground (c) The High Court clearly erred in holding that breach of the statement recorded in the order dated 14.10.2015 (assuming the same is considered as an undertaking contemplated under Section 2(b) of the Act 1971) was a wilful and deliberate breach, overlooking the following facts: (i) The Court has erred in disbelieving the explanation tendered by the Appellants regarding the necessity of the sales since the subject transfers had been concluded with full payment of consideration and handing over of possession vide the possession receipts much prior to 14.10.2015 and therefore, the transfers were not covered by the statement recorded on 14.10.2015. The High Court should have looked into the documents such as possession receipts, payment receipts and extracts of bank ledger statements, in respect of the subject sales produced before the High Court. The High Court erred in holding that no material had been placed to establish or demonstrate that the property had in fact been sold in the year 2012 itself. The High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 of the Act 1971 since the conduct of the Appellant has not obstructed the cause of justice in any manner whatsoever. As held by this Court in Murray Co. v. Ashok Kr. Newatia Another, (2000) 2 SCC 367 (paras 19 to 22), the language of Section 13 makes it clear that it is not enough there should be some technical contempt of court, but it must be shown that the act of contempt would otherwise substantially interfere with the due course of justice which has been equated with due administration of justice . (f) The High Court erred in imposing a sentence of imprisonment for civil contempt without assigning any reasons as to why such an exception had to be made more particularly overlooking the following: (i) A close scrutiny of Section 12(3) indicates that the legislature intended that in case of civil contempt a sentence of fine alone should be imposed except where the Court considers that the ends of justice make it necessary to pass a sentence of imprisonment also. Before passing an extreme sentence, the Court ought to assign special reasons after proper application of mind. There is absolutely no justification or reason set out in the judgment supporting a bare conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court is harsh. The plot owners are bona fide purchasers of the plots for consideration without notice. The sale in favour of the plot owners have been set aside without any notice to them or hearing them. The High Court could have balanced the equities rather than setting aside the sale deeds already executed bona fide by the Appellant. This Court in T. Ravi and Another v. B. Chinna Narasimha and Others reported in (2017) 7 SCC 342, has held that the transfer of the suit property pendente lite is not void ab initio and the purchaser of any such property take the bargain, subject to the rights of the Plaintiff in the pending suit. The Court further held that the same principle would apply to a case involving a breach of an injunction issued by a competent court, and such breach would not render the transfer by way of an absolute sale void or ineffective. 29. In support of the aforesaid submissions, the learned Senior Counsel placed reliance on the following case law: (i) Sevakram Prabhudas v. H.S. Patel and Others, 2000 (1) vol. 41 GLR 715; (ii) Mrityunjoy Das and Another v. Sayed Hasibur Rahaman and Others, (2001) 3 SCC 739; and (iii) Supreme Court Bar Association v. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced any authenticated documents in support of their case of having put the buyers in possession in the year of 2012 (income tax return, bank statement etc.). The cash receipt which they have produced is issued by S. K. Industries Service Society and not by the present appellants and also all of those documents are unauthenticated, forged and fabricated. The High Court has duly taken notice of this fact in its impugned order (para 35 at page 38). As per law, the sale is deemed to have been completed on the date when the sale deed is registered, which in the instant case are admittedly after the undertaking given by Sr. Advocate in the SCA No. 16266 of 2013 as recorded in the order dated 14.10.2015 of the High Court. (f) The apology given by the appellants is a farce. Apology from the appellants did not come at the first instance. If they were really sorry, they should have cancelled the sale deeds executed during the pendency of the contempt proceedings, which they have not done. It is only in the present proceedings that they have tried to show that they attempted to cancel the sale deeds by way of sending letters to the plot holders. Thus, they have tried to show that they mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e properties and that would make them vulnerable to further civil and criminal proceedings by such subsequent purchasers. 37. In such circumstances referred to above, Mr. Divan, the learned Senior Counsel prayed that this Court may tilt the equities and protect the bona fide purchasers of the property for value without notice. 38. The aforesaid submission canvassed by Mr. Shyam Divan, the learned counsel appearing for the respondents suggests that the appellants (purchasers) have further transferred the properties and as on date they have no further interest in the subject properties. ANALYSIS 39. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment and order? PRINCIPLES GOVERNING THE EXERCISE OF CONTEMPT JURISDICTION 40. The object of the discipline enforced by the court in case of contempt of court is not to vindicate the dignity of the court or the person of the Judge, but to prevent undue interference with the administration of justice. 41. Any interference with the course of justice is an affron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plining those erring in disobeying the orders of the Court/undertaking given to court. 46. This Court in a plethora of cases has explained the true purport of exercise of powers under the 1971 Act. In Mrityunjoy Das (supra), it held that: 13. Before however, proceeding with the matter any further, be it noted that exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct. The court must otherwise come to a conclusion that the conduct complained of tantamounts to obstruction of justice which if allowed, would even permeate in our society (vide Murray Co. v. Ashok Kr. Newatia [(2000) 2 SCC 367 : 2000 SCC (Cri) 473]). This is a special jurisdiction conferred on to the law courts to punish an offender for his contemptuous conduct or obstruction to the majesty of law. It is in this context that the observations of this Court in Murray case [(2000) 2 SCC 367 : 2000 SCC (Cri) 473] in which one of us (Banerjee, J.) was party needs to be noticed: (SCC p. 373, para 9) The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile sentence of fine is the rule. Xxx xxx xxx 34. The object of punishment being both curative and corrective, these coercions are meant to assist an individual complainant to enforce his remedy and there is also an element of public policy for punishing civil contempt, since the administration of justice would be undermined if the order of any court of law is to be disregarded with impunity. Under some circumstances, compliance of the order may be secured without resort to coercion, through the contempt power. For example, disobedience of an order to pay a sum of money may be effectively countered by attaching the earnings of the contemner. In the same manner, committing the person of the defaulter to prison for failure to comply with an order of specific performance of conveyance of property, may be met also by the court directing that the conveyance be completed by an appointed person. Disobedience of an undertaking may in the like manner be enforced through process other than committal to prison as for example where the breach of undertaking is to deliver possession of property in a landlord-tenant dispute. Apart from punishing the contemner, the court to maintain the majesty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il contempt as defined under Section 2(b) of the Act 1971? (ii) There exists a distinction between an undertaking given to a party to the lis and the undertaking given to a court. The undertaking given to a court attracts the provisions of the Act 1971 whereas an undertaking given to a party to the lis by way of an agreement of settlement or otherwise would not attract the provisions of the said Act. Whether in the present case an undertaking could be said to have been given to the court? (iii) Whether the contempt court has the power to declare any contemptuous transaction non est or void? In other words, although the transfer of the suit property pendente lite is not void ab initio yet when the court is looking into such transfers in contempt proceedings, whether the court can declare such transactions to be void in order to maintain the majesty of law? (iv) Whether the beneficiaries of a contemptuous transaction have a right to be heard in the contempt proceedings on the ground that they are necessary or proper parties as they are bona fide purchasers of the suit property for value without notice? (v) Whether the apology tendered by the contemnors deserves to be accepted or is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question. But such a proceeding is not like an execution proceeding under Code of Civil Procedure. The party in whose favour an order has been passed, is entitled to the benefit of such order. The court while considering the issue as to whether the alleged contemner should be punished for not having complied with and carried out the direction of the court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be wilful disobedience to any judgment, decree, direction, order, writ or other process of a court. Before a contemner is punished for non-compliance of the direction of a court, the court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional. The civil court while executing a decree against the judgment-debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was wilful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequence thereof. But while examining the gri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct. (Vide S. Sundaram Pillai v. V.R. Pattabiraman [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591], Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao [Rakapalli Raja Ram Gopala Rao v. Naragani Govinda Sehararao, (1989) 4 SCC 255 : AIR 1989 SC 2185], Niaz Mohammad v. State of Haryana [Niaz Mohammad v. State of Haryana, (1994) 6 SCC 332 : AIR 1995 SC 308], Chordia Automobiles v. S. Moosa [Chordia Automobiles v. S. Moosa, (2000) 3 SCC 282], Ashok Paper Kamgar Union v. Dharam Godha [Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11 SCC 1], State of Orissa v. Mohd. Illiyas [State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 : 2006 SCC (L S) 122 : AIR 2006 SC 258] and Uniworth Textiles Ltd. v. CCE [Uniworth Textiles Ltd. v. CCE, (2013) 9 SCC 753].) (Emphasis supplied) 55. The aforesaid decision also holds as under: 11. The contempt jurisdiction c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. It does not necessarily imply a consideration. In a somewhat special sense, a promise given in the course of legal proceedings by a party or his counsel, generally as a condition to obtaining some concession from the court or the opposite party. A promise or security in any form. 58. In M. v. Home Office and Another reported in (1992) Q.B. 270 : (1992) 2 WLR 73 : (1992) 4 All ER 97, the expression undertaking has been dealt with in the following manner: If a party, or solicitors or counsel on his behalf, so act as to convey to the court the firm conviction that an undertaking is being given, that party will be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood. (Emphasis supplied) 59. As the entire controversy revolves around the question whether the statement made by the learned counsel before the High Court was an undertaking on behalf of his clients and if yes then whether such undertaking could be said to have been given to the court, we must look into two decisions on this point; one rendered by the Bombay High Court and another by the Calcutta High Court. The Bombay High Court in Bajranglal Gangadhar Khemka and another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the only way to construe the expression 'undertaking' was to give it its plain natural meaning. Three judgments of the Calcutta High Court, all delivered by Single Judges, undoubtedly, were noticed which have taken the view that an undertaking means an undertaking to the court. Another Division Bench of the Calcutta High Court in Chhaya Debi v. Lahoriram Prashar, (1962-63) 67 CWN 819 considered the aforesaid two cases and construing the decree in that case held that the undertaking given by the opposite party was an undertaking given to court and the opposite party always understood the undertaking as one given to the court. The decree in terms of the settlement had only recorded that the opposite party gives an undertaking to the effect that he would quit. 61. This Court in Rama Narang (supra) while referring to the Contempt of Courts Act, 1952, had noticed that it did not contain many of the provisions of the Act 1971 for the Legislature had left formulation of the law of contempt to the Courts, which had resulted in conflicting views expressed by different High Courts. Reference was made to the conflicting view expressed by the Calcutta High Court in Nisha Kanto Roy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of the power. No distinction is statutorily drawn between an order passed after an adjudication and an order passed by consent. This first category is separate from the second and cannot be treated as forming part of or taking colour from the second category. The legislative intention clearly was to distinguish between the two and create distinct classes of contumacious behaviour. Interestingly, the courts in England have held that the breach of a consent decree of specific performance by refusal to execute the agreement is punishable by way of proceedings in contempt (see C.H. Giles and Co. Ltd. v. Morris [(1972) 1 All ER 960 : [1972] 1 WLR 307 (Ch D)]). (Emphasis supplied) 62. Thus, it is evident that Section 2(b) of the Act, which defines civil contempt, consists of two different parts and categories, namely, (i) wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or (ii) wilful breach of an undertaking given to a court. The expression any used with reference to the first category indicates the wide nature of power given to the Court and that the statute does not draw a difference between an order passed after adjudication or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt is to be seen in the specific context of the disobedience and the wilful nature of the same and not on the basis of the conduct subsequent thereto. While it is open to the court to see whether the subsequent conduct of the alleged contemnor would tantamount to an aggravation of the contempt already committed, the very determination of an act of contempt cannot simply be based upon the subsequent conduct. 26. But the subsequent conduct of the party may throw light upon one important aspect namely whether it was just the inability of the party to honour the commitment or it was part of a larger design to hoodwink the court. 65. In Rita Markandey v. Surjit Singh Arora reported in (1996) 6 SCC 14, it was observed that even if parties have not filed an undertaking before the court but if the court was induced to sanction a particular course of action or inaction on the representation made by a party and the court ultimately finds that the party never intended to act on the said representation or such representation was false, the party would be guilty of committing contempt. It was observed: 12. Law is well settled that if any party gives an undertaking to the court to vacate the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king given by a party, its order amounts in substance to an injunction. An undertaking given to the court by a person or a Corporation in pending proceedings on the faith of which the court sanctions a particular course of action or inaction, has the same force as an injunction made by the Court and breach of the undertaking is misconduct amounting to contempt. An undertaking given to the Court should be distinguished from a consent order, or what is known as an order passed on a compromise petition filed by the parties in a civil proceedings . A consent order is a mere agreement between the parties, even though the Court might record it and append its order thereto and in case of the failure of a party to comply with the terms of a consent order, the injured party cannot apply for committing the defaulter for contempt; his remedy is by way of specific performance or injunction. However, when a party secures an order from the court on giving an undertaking to the Court that he will take a particular course of action or inaction, such undertaking itself operates as an injunction made by the Court because the Court has made its order on the faith of the undertaking, e.g., stay of exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king given to the other party may not constitute the contempt of court. However, whether a particular undertaking is an undertaking to the court or to the opposite party must depend upon the facts and circumstances of each case and the language used. In the case on hand, it is not the case of the appellants that they had negotiated a settlement with the other side outside the court and reported the same to the High Court and the High Court proceeded to pass the order incorporating the undertaking given by the learned counsel upon instructions from the clients. Even if the parties, had negotiated a settlement outside the court and reported the same to the court and the court would have passed an order, in terms of such understanding, there would be no scope to warrant that the undertaking was not given to the court. 73. An undertaking or an assurance given by a lawyer based upon which the court decides upon a particular course of action would definitely fall within the confines of undertaking as stipulated under Section 2(b) of the Act 1971 and the breach of which would constitute civil contempt . As held in M. v. Home (supra) relied upon by this Court in Rama Narang (supra) that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions to the concerned authorities to see that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him. 81. It would be pertinent, in this context, to refer to the decision of the Chancery Division in Clarke and others v. Chadburn and others reported in (1985) 1 All ER 211, wherein it was held that an act done in wilful disobedience of an injunction or court order is not only a contempt of court, but also an illegal and invalid act which could not, therefore, effect any change in the rights and liabilities of others. Similar view was expressed by this Court in Satyabrata Biswas and Others v. Kalyan Kumar Kisku and Others reported in (1994) 2 SCC 266, wherein the contempt jurisdiction was invoked by the respondents against the appellants, and during the contempt proceedings, it transpired that a sub tenancy was created while the status quo order was in operation. This Court held that creation of sub-tenancy was in violation of the status quo order and parties were relegated to the position as existed on the date of the status quo order. This Court, inter alia, observed thus: 23. Such an order can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse, to the result of the suit. The pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court. 85. This Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and Another reported in (1996) 4 SCC 622, held that the legal consequences of what has been done in breach of or in violation of the order of stay or injunction should be undone and the parties could be put back to the same position as they stood immediately prior to such order of stay or injunction to not let the defaulting party enjoy any undue advantage. This Court while relying upon cases decided by various High Courts held as under: The contemner should not be allowed to enjoy or retain the fruits of his contempt Xxx xxx xxx 18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadburn [(1985) 1 All ER 211] Sir Robert Megarry V-C observed: I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law. 21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. Article 129 is a constitutional power and when exercised in tandem with Article 142, all such objections should give way. The court must ensure full justice between the parties before it. (Emphasis supplied) 86. This Court in Vidur Impex and Traders Private Limited and Others v. Tosh Apartments Private Limited and Others reported in (2012) 8 SCC 384, while deciding on a similar factual scenario held that the sale transactions conducted in teeth of the injunction passed by the Delhi High Court did not have any legal basis. This Court held as under: 42. At the cost of repetition, we consider it necessary to mention that Respondent 1 had filed suit for specific performance of agreement dated 13-9-1988 executed by Respondent 2. The appellants and Bhagwati Developers are total strangers to that agreement. They came into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void or proceed to pass appropriate directions to the concerned authorities to ensure that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or anyone claiming under him. 89. The High Court declared all the sale deeds executed by the contemnors in favour of the purchasers as non est. The High Court ordered that the sale deeds stand cancelled and set aside. The contemnors were directed to restore the position which was prevailing at the time of the order dated 14.10.2015 passed by the High Court. In our opinion, the High Court was fully justified in declaring the sale deeds as non est or void. IMPLEADMENT OF PURCHASERS AS NECESSARY PARTIES 90. We now proceed to answer the question whether the clients of Mr. Shyam Divan i.e., purchasers should have been impleaded as party respondents in the contempt proceedings before the High Court and whether they should have been heard before passing the final order. 91. In the case of Satyabrata Biswas (supra), it was held that no person can gain an advantage in derogation of rights of the parties. In the said matter an order was passed, directing the parties to maintain status quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Constitution that the courts of the land are vested with the powers of interpreting the law and of applying it to the facts of the cases which are properly brought before them. When once an order has been passed which the court has jurisdiction to pass, it is the duty of all persons bound by it to obey the order so long as it stands, and it would tend to the subversion of orderly administration and civil government, if parties could disobey orders with impunity. If disobedience could go unchecked, it would result in orders of courts ceasing to have any meaning and judicial power itself becoming a mockery. The right cannot be doubted that the court is empowered by the statute to issue injunction against the defendant in appropriate cases in such terms as the court thinks proper. Machinery has been provided to penalise the person who disobeys the order which is binding on the person injuncted as a part of the fundamental rule of law which governs equity. The further question that is required to be considered is whether the act itself committed in breach of the order remains unscathed. In our opinion, taking the view that such a transaction in all circumstances irrespective of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not have been impleaded by the trial Court as parties to the suit, in disobedience of its orders. (Emphasis supplied) 94. In Sarvinder Singh v. Dalip Singh and Others reported in (1996) 5 SCC 539, this Court considered the question whether the respondent therein who had purchased the property during the pendency of a suit for declaration filed by the appellant on the basis of a registered will executed by his mother was entitled to be impleaded as party and observed: 5. The respondents indisputably cannot challenge the legality or the validity of the Will executed and registered by Hira Devi on 26-5-1952. Though it may be open to the legal heirs of Rajender Kaur, who was a party to the earlier suit, to resist the claim on any legally available or tenable grounds, those grounds are not available to the respondents. Under those circumstances, the respondents cannot, by any stretch of imagination, be said to be either necessary or proper parties to the suit. A necessary party is one whose presence is absolutely necessary and without whose presence the issue cannot effectually and completely be adjudicated upon and decided between the parties. A proper party is one whose presence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no absolute rule that the transferee pendente lite without leave of the court should in all cases be allowed to join and contest the pending suits. (Emphasis supplied) 96. We may also be pertinent to refer to and rely upon the decision in D.N. Taneja v. Bhajan Lal reported in (1988) 3 SCC 26, whereunder it was held that in contempt proceedings there are only two parties, i.e., the court and the contemnor. This Court held as under: 12. A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and the contemnor. It may be one of the reasons which weighed with the legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19(1) can only be the contemnor who has been punished for contempt of court. (Emphasis supplied) 97. Thus, from the aforesaid, it is evident that it was not necessary for the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. (5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. Explanation. For the purposes of sub-sections (4) and (5), (a) company means any body corporate and includes a firm or other association of individuals; and (b) director , in relation to a firm, means a partner in the firm. 99. Section 12 of the Act 1971 provides for the punishment of contempt. Proviso to this section states that the accused may be discharged or the punishment awarded may be remitted on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disobedience of an undertaking or an order is with impunity and with total consciousness. 103. In re. Tapan Kumar Mukherjee v. Heromoni Mondal and Another reported in (1991) 1 SCC 397, this Court in a contempt matter has observed: 9. we should like to put out a warning that where a case of wilful disobedience is made out, the courts will not hesitate and will convict delinquent officer and that no lenience in the court's attitude should be expected from the court as a matter of course merely on the ground that an order of conviction would damage the service career of the concerned officer . 104. In re. Tapan Kumar (supra), this Court was dealing with a public servant facing an action for contempt. 105. We wonder what could be the ultimate outcome if we accept the apology and allow the appellants to go scot-free. First, they would have to face no legal consequences for the alleged act of contempt and secondly, would continue to enjoy or retain the fruits of their contempt. We say so because they have already pocketed a sizeable amount towards the sale consideration obtained from the purchasers. 106. In the case of Sub-Judge, First Class, Hoshangabad v. Jawahar Lal Ramchand Parw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... logy is neither a weapon of defence to purge the guilty of their offence, nor is it intended to operate as a universal panacea, it is intended to be evidence of real contriteness (vide M.Y. Shareef v. Hon'ble Judges of the High Court of Nagpur [AIR 1955 SC 19 : (1955) 1 SCR 757]; M.B. Sanghi v. High Court of Punjab Haryana [(1991) 3 SCC 600 : 1991 SCC (Cri) 897 : (1991) 3 SCR 312] ). 76. In T.N. Godavarman Thirumulpad (102) v. Ashok Khot [(2006) 5 SCC 1], a three-Judge Bench of this Court had an occasion to consider the question in the light of an apology as a weapon of defence by the contemnor with a prayer to drop the proceedings. The Court took note of the following observations of this Court in L.D. Jaikwal v. State of U.P. [(1984) 3 SCC 405 : 1984 SCC (Cri) 421] : (Ashok Khot case [(2006) 5 SCC 1] , SCC p. 17, para 32) 32. We are sorry to say we cannot subscribe to the slap say sorry and forget school of thought in administration of contempt jurisprudence. Saying sorry does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , manipulation of procedure and violation of the schedule prescribed under the orders of the Court is an admitted position. All that we have to examine is whether the apology tendered is bona fide when examined in the light of the attendant circumstances and whether it will be in the interest of justice to accept the same. 9. The facts which will weigh with the Court while considering acceptance of an apology are the contemptuous conduct, the extent to which the order of the Court has been violated, irresponsible acts on the part of the contemnor and the degree of interference in the administration of justice, which thereby cause prejudice to other parties. An apology tendered, even at the outset, has to be bona fide and should be demonstrative of repentance and sincere regret on the part of the contemnor, lest the administration of justice be crudely interfered with by a person with impunity. The basic ingredients of the rule of law have to be enforced, whatever be the consequence and all persons are under a fundamental duty to maintain the rule of law. An apology which is not bona fide and has been tendered to truncate the process of law with the ulterior motive of escaping the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need not detain us for long inasmuch as there is no distinction on principle in the decided cases. An apology is not a weapon of defence. Apology neither purges nor washes away an act of contempt. It is at best a mitigating circumstance while considering the consequential orders to be made, once a person is found to have committed Contempt of Court, civil or criminal. It is a factor relevant to be considered while devising the final order to be made against the contemner. An apology can only be considered which is in real sense remorseful and to the satisfaction of the Court as a contrition by the respondents. Ordinarily, belated apologies are considered to be offered more out of fear of punishment than with a sense of contrition. But merely because the apology has been tendered, not at the first instance, but at a later stage, by itself cannot be a ground for not considering it. Had it been so, proviso to Sec. 12 which makes it possible even after sentence of punishment has been made, to remit the same on considering the apology given thereafter. In short, whether an apology tendered at any stage of the proceedings is to be considered as mitigating circumstances or not depends on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding urgency to execute the sale deeds, they could have come to the High Court and should have obtained appropriate clarification or permission in that regard. This is the reason why we say that the appellants with a view to gain wrongfully gambled in the hope that ultimately, they would get away by tendering an apology. This is the reason why such fake apologies should not be accepted by the court and allow a person who has no regard for the Majesty of law to get away from the legal consequences. There is no occasion for us to show any compassion as contempt has been committed and proved beyond reasonable doubt and the effect of this contempt has been felt on the Majesty of the High Court. The litigating public cannot be encouraged that such a situation can continue or the court will not rise to the occasion to book people violating its orders. The law is very clear that the court should not get compassionate and dilute an indictment and not follow it with conviction. The fact that the appellants have committed contempt is not in doubt. The law enjoins that a punishment must follow. 114. We take notice of the fact that the issue of limitation to initiate the contempt proceedings w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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