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2017 DIGILAW 841 (CAL)

SANJAY JAIN v. RAJ KUMAR SAHA

2017-11-03

PATHERYA

body2017
JUDGMENT : 1. On 10th March, 2013 none appeared for the alleged contemnor respondents and it is only for this reason that the matter was listed on 7th April, 2017 at 3 P.M. but for the preoccupation of the business of the Court on 7th April, 2017 the matter could not be taken up for hearing. Instead the matter appeared on 27th October, 2017 and as none appeared on behalf of the alleged contemnor respondents, the matter was adjourned till this day. This matter was listed along with other matters in the list of 2nd November, 2017, therefore, it was well-known to the alleged contemnor respondents or their counsel that the matter would be considered on this day. An adjournment was sought on the ground of counsel of the alleged contemnor respondents and an adjournment would have ordinarily been granted. But this contempt application had been filed on 15th September, 2014 for the alleged violation of order dated 18th September, 2013 and since 2014 the alleged contemnor respondents has very successfully adjourned the matter times without number. Contempt proceedings are not proceeded as adversarial proceedings because an order is to be passed by Court and violation of such order which is alleged is brought to the notice of the Court, by filing a contempt application. Therefore, it is only for these reasons the petitioner is to bring the knowledge of the Court’s order or its violation and this is what has only been done in this case. Initially an opportunity was given to the alleged contemnor-respondents to file an affidavit to explain why a Rule should not be issued and, therefore, an affidavit was also filed and considered and on basis of the petition filed so also the affidavit an order was passed on 4th December, 2015. By the said order a Rule was issued against the alleged contemnor-respondent nos.1 & 2 and the said Rule was made returnable too. No appeal was filed from the order dated 4th December, 2015. Instead pursuant to the Rule, the alleged contemnor-respondent nos.1 & 2 appeared in Court on 15th January, 2016 and upon them given an undertaking their further appearance was dispensed with. Once again an affidavit was filed in answer to the Rule and such affidavit has been filed. 2. No appeal was filed from the order dated 4th December, 2015. Instead pursuant to the Rule, the alleged contemnor-respondent nos.1 & 2 appeared in Court on 15th January, 2016 and upon them given an undertaking their further appearance was dispensed with. Once again an affidavit was filed in answer to the Rule and such affidavit has been filed. 2. On perusal of the said affidavit filed by the alleged contemnor-respondents separately, the violation is evidently clear and the reasons given for such violation is set out in the contempt application. 3. The order was initially passed in G.A.2865 of 2013 on 18th September 2013 and on considering the facts of the case the Court restrained the respondent nos.1,2 and 3, namely, the alleged contemnor-respondent nos.1 and 2 from utilizing the sums received from the respondent nos.4 to 11 and in the event collections would be received from the distributors and the exhibitors by keeping the same in a separate account. 4. The partnership of the alleged contemnor-respondent nos.1 & 2 is one Mutual Film Production and its balance-sheet as on 30th September, 2013 so also its profit and loss account for the period April 2011 to 30th September, 2013 was relied on by the petitioner and the said must be considered so also mention must be made. Except the liability of the petitioner which is found in the balance-sheet, there is no payment made to the petitioner by the alleged contemnor-respondent nos.1 & 2. Under the Asset Column there is mention of “By hall collection” and the amount aggregates to Rs.3 lakhs so also Satellite Right Sales aggregating to Rs.15 lakhs. Therefore, in all the asset within a period of 1st April, 2011 to 30th September, 2013 is Rs.18 lakhs. This balance-sheet was considered on 30th September, 2013 and the order was passed on 18th September, 2013. Therefore, the alleged contemnor-respondents were well aware of the order dated 18th September, 2013 and the directions given therein. Hall Collection would only be from exhibitors and distributors as they would be the only people who would be interested to release the film and screen the same for payment. In fact, even having filed an affidavit in answer to the Rule, there is no explanation why hall collection was made or why no payment was paid to the petitioner as per the Memorandum of Understanding. 5. In fact, even having filed an affidavit in answer to the Rule, there is no explanation why hall collection was made or why no payment was paid to the petitioner as per the Memorandum of Understanding. 5. Therefore, admittedly sum was received by the alleged contemnor-respondents and it is true that utilization has also been made. This will appear from the affidavit filed by both the alleged contemnor-respondents, namely, Raj Kumar Saha and Smt.Susmita Saha, but the utilization made has not been explained. 6. It has been alleged by the alleged contemnor-respondents that regularly notices were issued and it is because of this payments could not be received to screen the picture. If such an explanation is given then the payment of “hall collection” cannot be supported nor understood. Payment to technicians or persons who have been paid Rs.5,000/- is of no relevance specially in respect of the profit and loss account so also the balance-sheet of 30th September, 2013. The auditor submitted his report and it has been categorically stated that the audit report was prepared based on the books and records produced before him. It has gone further to say that they cannot vouch items of expenditures because of non-production of supporting and most of the items of the expenditure has been made in cash and this auditor’s report was submitted on 12th December, 2013, i.e., three months after the order was passed on 18th September, 2013. Therefore, violation of the order dated 18th September, 2013 is rampant. In fact, the order dated 18th September, 2013 remains unchallenged even the order dated 4th December, 2015 stands unchallenged. Therefore, the alleged contemnor-respondent nos.1 & 2 namely, Raj Kumar Saha and Smt.Susmita Saha have acted violation of the order dated 18th September, 2013 and each of them is liable to be punished for Rs.2,000/. Such payment be made by 10th November, 2017 and in the event such payment is made or each of them has expressed its inability to make such payment then the alleged contemnor-respondents each of them will be punished with simple imprisonment for two days. 7. The prayer of the alleged contemnor-respondents through their advocate could not be acceded as in contempt proceedings, it is between the Court and the petitioner who has only brought to the Court its order and the only intention of the petitioner is to upheld the majesty and dignity of the Court. 7. The prayer of the alleged contemnor-respondents through their advocate could not be acceded as in contempt proceedings, it is between the Court and the petitioner who has only brought to the Court its order and the only intention of the petitioner is to upheld the majesty and dignity of the Court. As the alleged contemnor-respondents have already filed an affidavit by giving an answer to the Rule, his or her presence would no longer be necessary. 8. In view of the above, this contempt application and the Rule issued is accordingly disposed of. 9. Urgent certified copy of this order be made available to the parties, if applied for, upon compliance of requisite formalities.