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2016 DIGILAW 24 (CAL)

Debashis Bose v. Punj Lioyd Ltd.

2016-01-08

JYOTIRMAY BHATTACHARYA, SHIB SADHAN SADHU

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JUDGMENT Jyotirmay Bhattacharya, J. Re: CAN 12337 of 2015 This mandamus appeal was filed beyond the prescribed period of limitation. There was 13 days delay in filing this appeal before this Court. 2. The reason for the delay has been explained by the appellants in the instant application for condonation of delay. 3. After hearing Mr. Bandyopadhyay, learned advocate appearing for the appellants and Mr. Dutta, learned senior advocate appearing for the writ petitioner/respondent, we hold that the reason for the delay in filing this appeal has been sufficiently explained by the appellants in this application. 4. Accordingly, delay in filing the appeal is condoned. 5. The application for condonation of delay thus, stands allowed. 6. Let the appeal now be registered. Re:- M.A.T. 1927 of 2015 CAN 12338 of 2015 7. The legality and/or propriety of an order passed by the Learned Single Judge of this Court on 30th September, 2015 justifying issuance of rule in a contempt proceeding is under challenge before us in this appeal. 8. A question is raised as to maintainability of this appeal before us, while the appellant's application for stay is taken up for hearing. Since a question regarding maintainability of this appeal is raised, we like to decide the said question first before entering into the merit of this appeal and/or the stay application filed in connection with this appeal. 9. For proper appreciation of the present issue, we like to give a short background of the litigation leading to the passing of the impugned order by a learned Single Judge of this Court: 10. The legality of the termination of the contract was challenged before the Writ Court by the writ petitioner who was awarded with the work order in pursuance of the contract entered between the parties for construction of three medical colleges in West Bengal. The legality of the termination of the contract was challenged before the Writ Court by the writ petitioner who was awarded with the work order in pursuance of the contract entered between the parties for construction of three medical colleges in West Bengal. Though several reliefs were claimed in the writ petition but ultimately the Learned Trial Judge, after noticing the arbitration agreement entered into between the parties for resolution of their dispute arising out of their contract, without entering into the disputed questions involved between the parties in the writ petition, disposed of the writ petition by directing the respondents to pay a sum of Rs.19 crores to the writ petitioner, as the Learned Single Judge found that such amount of Rs.19 crores was payable to the writ petitioner on the basis of the joint measurement of the work executed by the writ petitioner in pursuance of the contract. 11. Being aggrieved by the said judgment and/or order of the Learned Single Judge of this Court, a mandamus appeal was filed by the State-respondents before the Division Bench of this Hon'ble Court. 12. In course of hearing of the said appeal, the fact relating to the invocation of the Bank guarantee by the State-respondents after disposal of the writ petition but before filing of the appeal was brought to the notice of the appeal court, but no exception was taken by the writ petitioner to the invocation of such Bank guarantee by the appellants even before the appeal court. 13. Considering the fact that both the parties agreed to get their dispute resolved through arbitration, the appeal court without entering into the dispute involved in the appeal, ultimately disposed of the said appeal on 24th February, 2015 with the following order:- "In the light of the joint measurement order which reached its finality and the joint measurement which indicated certain amounts, the learned Judge opined that there is no justification to withhold the said Rs.19 crores. In the light of appellant authority already invoking bank guarantee for more than Rs.20.40 crores and also withholding of more than Rs.5 crores from running bills, we find no justification in the stand of the appellant authority to contend that when termination of contract is subject matter of arbitration, the present direction to pay Rs.19 crores was not justified. In the light of appellant authority already invoking bank guarantee for more than Rs.20.40 crores and also withholding of more than Rs.5 crores from running bills, we find no justification in the stand of the appellant authority to contend that when termination of contract is subject matter of arbitration, the present direction to pay Rs.19 crores was not justified. It is needless to say that this payment of Rs.19 crores arising out of joint measurement is always subject to finality of arbitration proceedings. With these observations, the appeal, treating the same as on day's list, is disposed of. Consequently, the application being C.A.N. 783 of 2015 is also disposed of. There would be no order as to costs." 14. The appellants were not satisfied with the said order of the appeal court. As such, they preferred a Special Leave Petition before the Hon'ble Supreme Court but ultimately, they were unsuccessful. 15. The special leave petition was dismissed by the Hon'ble Supreme Court. Subsequently when the invocation of bank guarantee was brought to the notice of the Learned Single Judge of this Court, the impugned order was passed by the learned Single Judge on 30th September, 2015 justifying issuance of a contempt rule for invocation of bank grantee by the appellant. While issuing a contempt rule, the learned Single Judge recorded her prima facie satisfaction that invocation of such bank guarantee prior to adjudication of the dispute regarding ascertainment of liquidated damages through arbitration, was in violation of the order passed on 23rd December, 2014. The said rule was made returnable after nine weeks. 16. The legality of the said order is under challenge in this mandamus appeal before us. 17. While addressing us on the question of maintainability of this mandamus appeal Dr. Bandyopadhyay, learned advocate appearing for the appellants submits before us that though no appeal lies under Section 19 of the contempt of Courts Act for challenging an order of issuance of a contempt Rule, but any order passed in a contempt proceeding, can be challenged in an intra court appeal under Clause 15 of the Letters Patent. In support of such submission, he strongly relies upon a decision of the Hon'ble Supreme Court in the case of Midnapore Peoples' Co-operative Bank Limited and others v. Chunilal Nanda and others reported in (2006) 5 SCC 399. In support of such submission, he strongly relies upon a decision of the Hon'ble Supreme Court in the case of Midnapore Peoples' Co-operative Bank Limited and others v. Chunilal Nanda and others reported in (2006) 5 SCC 399. To support his said submission he drew our attention to the findings of the Hon'ble Supreme Court recorded in paragraph 11 (V) which runs as follows:- "Paragraph 11(V) - If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)." 18. help the appellants in establishing their stand that the present mandamus appeal is maintainable. 19. On a reading the said judgment of the Hon'ble Supreme Court, it appears to us that if any issue is decided by the Learned Single Judge in a contempt proceeding, the aggrieved person may challenge the said order in an intra-court appeal. 20. This is a case where admittedly no issue has yet been decided by the Learned Single Judge of this court in a contempt proceeding. 21. As such we hold that the appellants cannot maintain this appeal by taking aid of first part of the finding of the Hon'ble Supreme Court in the said judgment. 22. We further find that the Hon'ble Supreme Court has held in the said decision that intra-court appeal is permissible when the Learned Single Judge makes any direction, relating to the merits of the dispute between the parties provided there is a provision for an intra-court appeal. 23. Let us now consider the maintainability of this appeal in the light of this part of the findings of the Hon'ble Court in the facts of the present case. 23. Let us now consider the maintainability of this appeal in the light of this part of the findings of the Hon'ble Court in the facts of the present case. In this regard we are required to consider as to whether the impugned order can be regarded as a direction passed by the Learned Single Judge of this Court relating to the merits of the dispute between the parties in the contempt proceeding and further as to whether any intra court appeal is provided under Clause 15 of the Letters Patent for challenging such order of the Single Judge. 24. No doubt, intra-court appeal for challenging an order of a learned Single Judge of this Court before the Division Bench of this Court is permissible under Clause 15 of the Letters Patent. Clause 15 of the Letters Patent can be invoked for maintaining an appeal for challenging an order passed by the learned Single Judge of this Court provided, the rights of the parties either at the interlocutory stage or at the final hearing, are decided conclusively by a learned Single Judge of this Court and any direction is passed affecting the rights of the parties. 25. In this regard we will have to examine first as to whether issuance of a contempt rule simpliciter can be regarded as passing of a direction relating to the merit of the dispute between the parties or in other words whether issuance of rule can at all be regarded as conclusive determination of the rights of the parties either at interlocutory stage or at the final hearing. 26. In our considered view mere issuance of a rule asking the contemnor to show cause as to why he/they will not be punished under the Contempt of Courts Act for violation of the order of a court can neither be considered as final adjudication of the disputes amounting to judgment within the meaning of the judgment deciding the right of the parties under Clause 15 of the Letters patent nor issuance of such rule can be considered as any direction passed in a contempt proceeding either affecting the rights of any of the parties therein or in aid of implementation of the order, violation of which is complained of. 27. 27. In this regard, we also like to mention here that while issuing the said rule, the learned Single Judge was very much conscious about the situation and as such, the learned Single Judge in the impugned order has specifically mentioned that the said rule was issued on a prima facie view that there was a violation. Such prima facie view is not conclusive finding as ultimately the contempt Rule may be discharged, if the contemnor can satisfy the court that there was no wilful violation of the order or the order has not been violated by the contemnor at all. 28. Such being the position, we are of the view, that the decision which was cited by Dr. Bandopadhyay to support his contention that the appeal is maintainable, can not be accepted by us as we hold that the impugned order can neither be construed as a judgment deciding the rights of the parties which is assailable under Clause 15 of the Letters Patent nor such an order can be regarded as a direction passed in the contempt proceeding in aid of enforcement of an order, violation of which is complained of in the said proceeding, or in the contempt proceeding the court cannot take up any issue which was not resolved by the writ Court while deciding the writ petition. 29. We thus, decline to entertain this appeal and dispose of the same by treating the same as on the day's list. 30. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application. 31. The application for stay being CAN 12338 of 2015 is thus, deemed to be disposed of. 32. We, however, make it clear that while disposing of this appeal, we have not considered the merit of the contempt proceeding. 33. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocate for the appellant immediately. Intra-Court Appeal Disposed of.