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2007 DIGILAW 655 (CAL)

KESHAB NARAYAN BANERJEE v. SRIJIT DUTTA GUPTA

2007-08-28

BHASKAR BHATTACHARYA, MAHARAJ SINHA

body2007
( 1 ) THE Court: By this application, the petitioner has prayed for the following relief: " (a) Leave be given to the petitioner to make this application. (b) An order be passed directing the State Bank of India, Rash Behari Avenue branch to renew 20 fixed deposit receipts particular thereof are set out in table 'c' annexed hereto cumulatively for the periods form 1991 till 2002 as it had done for the periods from 2002 to 2005 as shown in the table 'c' annexed hereto. (c) Order be passed against State Bank of India, Grey Street Extension branch regarding 12 fixed deposit receipts details whereof are set out in table 'g' annexed hereto directing the said branch to renew all the fixed deposit receipts on a cumulative basis till March 18, 2005 as shown in the table marked 'g'. (d) Order to be passed directing the Branch Manager of Grey Street Extension branch of State Bank of India to renew the said fixed deposits on quarterly payable interest basis in terms of the order dated 18th March, 2005 passed by the Hon'ble Appeal Court in CPAN No. 371 of 2004. (e) Such further order or orders as to this Honb'le Court may deem fit and proper. (f) Costs. (h) Any other writ or writs, order or orders and direction or directions, as to your Lordships may deem fit and proper. " ( 2 ) THE facts giving rise to filing of this application may be precised thus: (1) By a declaration of trust, dated June 17, 1950, executed and registered on June 21, 1950 by one Sm. Shakti Sudha Devi, since deceased, a public and religious trust known as "debi Kamal Trust Estate" was created. The said Sm. Shakti Sudha Devi was the" sole trustee from its inception until her death in the year 1970. (2) After the death of the said Sm. Shakti Sudha Devi, her two sons, viz. Kesab Narayan (the petitioner) and Kamal Narayan (since deceased) became the trustees and in terms of the deed of trust, Keshab Narayan became the managing trustee for the first five years since 1970. (3) In the year 1975, Kamal Narayan relinquished the office of trustee by a registered document and since then, the petitioner has been functioning as the sole and managing trustee of the estate. (3) In the year 1975, Kamal Narayan relinquished the office of trustee by a registered document and since then, the petitioner has been functioning as the sole and managing trustee of the estate. (4) There was a search and seizure by the income-tax department as a result of which receipts of the various fixed deposits were seized by the Income tax Authorities. The petitioner, as a trustee of the Trust Estate, claimed that all these fixed deposits belonged to the trust. The Income Tax authorities, however, had investigated the matter and ultimately, was satisfied that those were not part of any undisclosed income of the trust; and the proceedings ended in favour of the Trust holding that those were part of the disclosed the income of the trust. (5) In spite of such a situation, the seized documents were not returned, as a result, several writ applications were filed on behalf of the trust. Ultimately, by an order passed by this Court, the Income Tax Authority was directed to consider the question of release of those seized documents in accordance with law. Pursuant to such order dated February 27, 2003 passed in FMA no. 245 of 2001 arising out of CR No. 10194 (W) of 1981, the Income Tax department released all those documents. (6) Admittedly, those documents were seized about 30 years ago and during the whole period, no one had lodged any claim in respect of any of those fixed deposits. At the same time, interests were being released in favour of the trust. The Income Tax Authority, as mentioned above, found that those fixed deposits were made out of the disclosed income of the trust and that those were shown in the return of the Trust and reflected in its accounts all through. At the same time, interests were being released in favour of the trust. The Income Tax Authority, as mentioned above, found that those fixed deposits were made out of the disclosed income of the trust and that those were shown in the return of the Trust and reflected in its accounts all through. (7) In the past, on the allegation that the banks refused to release the interest accruing from those accounts in favour of the trust, three different applications for contempt were filed and those were disposed of by an order dated March 18, 2005 by a Division Bench of this Court in the following terms: "in the circumstances, we direct each of the banks to renew the respective fixed deposits in the name of the trust retaining the identification of each of the deposits by mentioning the names in whose names such deposits were and are standing at the time of renewal in terms of this order. The period of such a renewal shall be for a period of three years from the date of the respective renewals. The trust and the applicant, Keshab Narayan Banerjee, shall be restrained from encashing or in any way dealing with any of these fixed deposits, though, however, the trust would continue to receive the interests accrued on the above fixed deposits. On account of disbursement of interest to the trust the property situated at 7, Queen's Park, Calcutta-700 019, belonging to the trust, to the extent of the amount of interest so disbursed, shall remain charged for a period of three years without affecting the title of the trust in respect of the said property. The trustees or the present trustees of the trust, including Sri Keshab Narayan Banerjee, shall also furnish separate indemnity bond to each of the respective banks for indemnifying such banks from any loss arising out of any future the claim lodged by any of the parties in whose names the respective fixed deposits were standing for a period of three years commencing from the date of this judgment. In case no claim is made or lodged within the aforesaid period of three years, then and in that event, these fixed deposits shall be free. The above renewals shall be made within a period of one month from the date the trust makes respective applications for the respective renewals of the respective fixed deposits. In case no claim is made or lodged within the aforesaid period of three years, then and in that event, these fixed deposits shall be free. The above renewals shall be made within a period of one month from the date the trust makes respective applications for the respective renewals of the respective fixed deposits. In case the respective banks are dragged into and involved in any litigation, the trust and the trustees shall defend the same at its own cost taking the liability upon it, keeping the bank concerned indemnified of all claims and the cost of all such litigations. " (8) It may not be out of place to mention here that in the writ application out of which the mandamus-appeal arose, D. K. Sen, J. on July 10, 1984, inter alia, passed the following direction: "the respondent Income-tax Authorities are directed to make over the fixed deposit receipts mentioned in the schedules 'e 1 to E 9' to the Managers of the respective branches of the respondent-banks referred to in the schedules; upon production of the said fixed deposit receipts the respondent-Banks are directed to renew the same for a period of 63 months from their respective dates of maturity together with accrued interest and keep the receipts of the renewed deposits in their custody subj ect to further orders of this Court". ( 3 ) IN this application, it is alleged that there are altogether 36 fixed deposit receipts with the Rash Behari Avenue Branch of the State Bank of India. In case of 16 such deposits, the State Bank of India had paid cumulative interest all throughout the period. However, in respect of the other 20 fixed deposits, only a simple interest has been paid between the year, 1991 and 2002 and thereafter, on the cumulative basis for the period from the years 2002 to 2005. So far the transaction with the State Bank of India, Grey Street Extension branch is concerned, there are altogether 12 fixed deposit receipts. According to the petitioner, the said branch, in total disregard of the order dated July 10, 1984 mentioned above, has paid only simple interest all throughout. So far the transaction with the State Bank of India, Grey Street Extension branch is concerned, there are altogether 12 fixed deposit receipts. According to the petitioner, the said branch, in total disregard of the order dated July 10, 1984 mentioned above, has paid only simple interest all throughout. This branch, apart from committing the aforesaid violation of the order, is not paying quarterly interests in respect of these 12 fixed deposit receipts in contrast with the Rash Behari Avenue Branch which has paid quarterly interest in June, 2005, taking March 18, 2005, as the date of commencement of the deposit having regard to the date on which the order was passed by this Court while disposing of the earlier applications for contempt. According to the petitioner, the said grey Street Extension Branch has also violated the order dated March 18, 2005 by renewing four out of the said 12 fixed deposit receipts on cumulative basis thereby denying regular interest to the petitioner as per direction of this court. ( 4 ) THE petitioner further alleges that the order of D. K. Sen, J. , directing the renewal of fixed deposits for a period of 63 months together with accrued interest from the respective dates of maturity of the fixed deposits, has not been complied with by the State Bank of India. The petitioner, thus, complains that the fixed deposits should have been renewed together with the accrued interest thereon from the respective dates of their maturity but instead of doing that, the bank had not added interests to the principal amount and thereby the principal amount in the fixed deposit is lying the same as they were at the beginning. According to the petitioner, the action of the bank in not giving cumulative interest to the said fixed deposit is in clear violation of the order passed earlier by this Court. Hence, this application for the relief mentioned above. ( 5 ) THIS application is opposed by the State Bank of India by filing affidavits and its defence may be epitomized thus: (a) The application filed by the petitioner is a misconceived one and should be summarily dismissed. (b) The order passed by this Court in the past was very specific and by taking aid of such order, renewal of the fixed deposits cannot be given with retrospective effect. (b) The order passed by this Court in the past was very specific and by taking aid of such order, renewal of the fixed deposits cannot be given with retrospective effect. The petitioner cannot be permitted to seek renewal of the fixed deposits for the periods from 1991 till 2002. (c) As regards the allegations made against the Rash Behari Avenue Branch, the cumulative interest was paid on all the 16 fixed deposits, which were issued as special term deposits because under the reinvestment scheme, interests are reinvested automatically; but in case of ordinary fixed deposit, the interest is payable periodically and therefore, no question of giving cumulative interests arose. (d) The direction given by the Division Bench had been complied with by the Rash Behari Avenue Branch and as such, no further direction should be given in that regard. (e) As regards the allegations made against the Grey Street Extension Branch is concerned, the interest on term deposit was calculated applying the simple rate as applicable on the date of renewal on the completion of the block period of 36 months and such interest has already been received by the trust Estate. As regards the special term deposits, those were renewed with the block period of 36 months with cumulative value of the special term deposit after taking into consideration the fact as if those were renewed every time for a period of 36 months from the date of their maturities falling between January 29,1990 and May21,1990, the original dates of maturities. As the interests were added upon the principal, the question of payment of interest on special terms deposits did not arise. ( 6 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record, we find that this application has been filed in connection with the disposed of applications for contempt in a mandamus appeal. Such mandamus appeal has also been disposed of long ago. While disposing of the applications for contempt, a Division Bench of this Court passed certain directions upon the bank as regards payment of interest and renewal of various fixed deposits lying in the name of different persons although owned by the trust Estate. Such mandamus appeal has also been disposed of long ago. While disposing of the applications for contempt, a Division Bench of this Court passed certain directions upon the bank as regards payment of interest and renewal of various fixed deposits lying in the name of different persons although owned by the trust Estate. Such directions have been complied with the by the bank but the dispute is whether while renewing the fixed deposit accounts, the bank should add interest that accrued in course of long thirty years on cumulative basis or whether simple interest will be added. No such direction was given by this court earlier on this aspect and the Banking Rule prevailing at the relevant point of time should solve the problem. ( 7 ) IF the petitioner is of the view that the direction passed in the earlier applications for contempt had been violated, it can come up with fresh application for contempt alleging such violation. After going through the earlier orders passed by the Division Bench, we find that it is not even the allegations of the petitioner that any of the directions given by the Division Bench has been violated by the bank. In fact, the petitioner by filing this application, wants direction for compliance of the order passed by D. K. Sen, J. in the year 1984 although against final order passed in the said writ application, the mandamus appeal was filed. The said mandamus appeal was disposed of with certain directions to the Income Tax Authorities. It is not even the case of the petitioner that the order disposing of the said mandamus appeal has been violated. ( 8 ) IN such a situation, we are of the view that within the narrow scope of this application, the relief claimed by the petitioner cannot be granted. It is apparent that the petitioner prays for direction as regards various alleged irregularities committed by the bank in not renewing the fixed deposits by not adding the reinvested amount of interest to the principal amount and that too, from a period prior to the date of disposal of the mandamus appeal. ( 9 ) IT is now a settled law that while exercising the contempt jurisdiction, the Court cannot extend the span of the main order the violation of which is alleged. ( 9 ) IT is now a settled law that while exercising the contempt jurisdiction, the Court cannot extend the span of the main order the violation of which is alleged. In this connection, it will be profitable to refer to the following observations of the Apex Court in the case of V. M. Manohar Prasad vs. N. Ratnam Raju, reported in 2004 (13) SCC 610 : "an order passed in the contempt petition, could not be a supplemental order to the main order granting relief. " ( 10 ) THE same view was taken in the earlier judgment of the Supreme Court in the case of Jhareswar Prasad Paul vs. Tarak Nath Ganguly, reported in 2002 (5) SCC 352 , where the Apex Court made the following observations: "the purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of Law, since the respect and authority commanded by the courts of Law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of Court is a special power vested under the constitution in the Courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the Courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the Court exercising the jurisdiction to punish for contempt does not function as an original or appellate Court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the Court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The Court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The Court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The Court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which is alleged to have committed deliberate in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the Court which disposed of the matter for clarification of the order instead of the Court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the Court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled keshab N. Banerjee vs. Srijit D. Gupta (B. Bhattacharya, JJ.) (DB) 1003 against the Courts exercising Contempt of Court jurisdiction 'that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute' in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of Courts. Judging the case in hand on the touchstone of the principles noted above, we find that the directions issued by the Division Bench in the impugned judgment in effect granted substantive relief not covered by the judgment/ order passed in the original proceeding. In the judgment, no direction was issued by the High Court that the writ petitioners will be admitted to the cadre of Upper Division Clerks/assistants in the Directorate. As noted earlier, they have all along been holding the posts of Clerk-cum-Cash collector which are ex cadre posts. In the judgment, no direction was issued by the High Court that the writ petitioners will be admitted to the cadre of Upper Division Clerks/assistants in the Directorate. As noted earlier, they have all along been holding the posts of Clerk-cum-Cash collector which are ex cadre posts. Entry of such persons into the cadre of upper Division Clerks/assistants has to be considered taking into account various aspects of the matter. It is one thing to say that the benefits under the Government order may be extended to the writ petitioners also and extending benefits of the Government order to the writ petitioners is one thing and directing their entry into the existing cadre of office assistants is a different thing. Such a dispute can only be determined on consideration of all relevant aspects of the matter and cannot be and should not be ordered in the summary proceeding for taking action for Contempt of Court. " ( 11 ) WE are, therefore, unable to consider the question of passing the further direction as prayed for in this application enlarging the relief already granted to the petitioner while disposing of the main mandamus appeal or the subsequent application for contempt. ( 12 ) IF the petitioner is of the view that by the alleged action or inaction on the part of the bank any of his legal or fundamental rights has been violated, he is free to approach the appropriate forum in accordance with law. ( 13 ) WE, accordingly, hold that this application is not maintainable as there is no scope of deciding the alleged irregularities committed by the bank in this application filed in connection with the disposed of applications for contempt and, accordingly, the same is dismissed. ( 14 ) WE make it clear that we have not gone into the merit of the claim and the rejection of this application will not stand in the way of the petitioner in approaching appropriate authority in accordance with law. ( 15 ) IN the facts and cricumstances, there will be, however, no order as to costs. .