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2018 DIGILAW 1541 (GAU)

DEVENDRA KUMAR SETHIA v. SUNIL KUMAR SETHIA

2018-10-12

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard the submission of learned counsel for petitioner Mr. G N Sahewalla and learned counsel for the respondent Mr. O P Bhati. 2. This is an application u/s 12 of Contempt of Courts Act r/w Section 215 of the Constitution of India alleging willful and deliberate violation of the order dated 9.6.2017 passed by this Court in Arb. Appeal No. 5/2003. 3. Brief case that can be re-capitulated is that the petitioners along with the (respondent/contemnors No. 1) Sunil Kumar Sethia, Manoj Kumar Sethia (respondent/contemnor No. 2), M/S Kamal Chand Sunil Kumar Sethia (HUF) (represented by Respondent/contemnor No. 3 as its Karta), Smt. Chaina Devi Sethia (Respondent/contemnor No. 4), M/S Sunil Kumar Sethia & Sons, (HUF) represented by Respondent/contemnor No. 1 as its Karta, M/S Manoj Kumar Sethia & Sons, (HUF) (represented by Respondent/contemnor No. 2 as its Karta), M/S K.S. S Financiers (P) Ltd represented by Respondent/contemnor No. 3 as its Director), M/S. Deepak Enterprises (P) Ltd. (represented by Respondent/contemnor No. 2 as its Director), executed a deed of partnership on 1-1-1996 constituting a partnership firm in the name and style of M/S Rajkamal & Co which owns and possess the "Hotel Rajmahal" and the said deed of partnership was duly registered. The deed of partnership agreement provided that the petitioner Devendra Kumar Sethia and Sri Narendra Kumar Sethia and the respondent No. 1, Sunil Kumar Sethia will be the working partners and shall be entitled to look after the day to day affairs of the aforesaid Hotel Rajmahal. Due to the certain disputes between the partners, the matter was referred to the arbitration being registered as Arb. Case No. 2/2002 and in the said case the sole arbitrator vide order dated 22-06-2003 directed that Devendra Kumar Sethia and Sri Narendra Kumar Sethia to be allowed to effectively participate in day to day activities and affairs of the Firm but as the petitioners were not allowed to effectively participate in day to day affairs so they filed an application u/s 31 of the Arbitration and Conciliation Act, for passing an interim order which was registered as Misc. Case no. 1/2003 in the said Arbitration Case No. 2/2002. The respondent also preferred the petition u/s 16 (2) of the Act before the learned Sole Arbitrator which was registered as Misc case no. Case no. 1/2003 in the said Arbitration Case No. 2/2002. The respondent also preferred the petition u/s 16 (2) of the Act before the learned Sole Arbitrator which was registered as Misc case no. 3/2003 in the Arbitration Case No. 2/2002 that the Arbitral Tribunal has no jurisdiction to decide the dispute raised by the petitioners as the dispute is already under the seisin of another Arbitral Tribunal. Upon hearing both the parties, the sole arbitrator in Arbitration Case No. 2/2002 rejected the prayer of the respondent, preferred u/s 16 (2) of the Act by order dated 22.12.02. 4. Upon hearing the parties in Misc Case 1/2003 in Arb. Case No. 2/2002, the learned sole arbitrator passed the following interim award dated 22-6-2003 :- 1. Devendra Kumar Sethia and Narendra Kumar Sethia be allowed to effectively participate in the day to day activities and affairs of the firm M/s Rajkamal & Co; and 2. All the three working partners, namely Devendra Kumar Sethia (petitioner No. 1) Narendra Kumar Sethia (Petitioner No. 3) and Sunil Kumar Sethia (Respondent No. 1) to jointly sign all vouchers, cheque, expenditure accounts, book accounts and all statutory returns and documents to be filed by the firm before the concern authority." 5. The aforesaid interim award dated 22.6.2003 and the order dated 22.12.2002 was assailed by the respondents before learned District Judge, Kamrup in Misc. Arb. Case No. 5/2003 and the learned Addl. District Judge, Kamrup upon hearing the parties by its order dated 30.11.2012 affirmed the aforesaid award and order. Assailing the judgment and order dated 30.11.2012 respondent preferred the appeal before the Hon'ble Gauhati High Court and this Court by order dated 9.6.2017 pleased to uphold the first part of interim award dated 22.6.2003 as mentioned above, with the observations that the said finding is well within the stipulation of partnership deed and the same is rightly arrived at by the learned Arbitrator but however, further direction in para 2 of the order was set aside. 6. 6. Now the petitioners herein recently come across a public notice issued by one Sri Tilak Chandra Das, advocate of the Gauhati High Court, published in two newspapers one in "Assam Tribunal" and another in "Purvanchal Prahari" dated 4.9.2017 wherein it has been sought to be notified to the public at large that under the instruction of his clients i.e. the respondents, the partnership firm and M/s Raj Kamal and Co. has been re-constituted, whereas the petitioners have never consented or authorized any one to re-constitute the partnership firm on their behalf and the said re-constitution is neither valid nor binding for all intent. Since the public notice issued under the hand of one advocate and it did not represent the correct position, the petitioners herein published a clarification/public notice in the issue of newspaper "Purvanchal Prahari' dated 6.9.2017 clarifying that the public notice dated 4.9.2017 does not represent the correct position and no member of public should relied and act upon the said notice. Further case of petitioners is that the respondents, instead of allowing Devendra Kumar and Narendra Kumar to effectively participate in the day to day activities and affairs of the firm M/s Raj Kamal and Co. as directed by this Court in its judgment dated 9.6.2017 has restrained them to enter into the activities of the firm from all corner. By alleging that the respondents have willfully and deliberately violated the direction of this Court in its order dated 9.6.2017 so contempt proceeding should be drawn against the respondents as contemnors under the provision of the Act. 7. Challenging the contention of the petitioners, respondents have filed their affidavit-in opposition wherein contending that the present petition is not maintainable in law as well as in fact in as much as there is no contempt on the part of the respondents of the judgment and order dated 9.6.2017 passed by this Court in Arb. Appeal No. 5/2003. In fact, by aforesaid judgment this Court has only put the seal of the approval on the interim award dated 22.6.2003 to the extent that "Devendra Kumar Sethia and Narendra Kumar Sethia be allowed to effectively participate in the day to day activities and affairs of the firm "M/s Raj Kamal and Company" and no other directions had ever been issued by this Court to the respondents. The award dated 22.6.2003 either interim or final passed by the learned Arbitrator is an enforceable award and executable u/s 36 of the Arbitration and Conciliation Act as it is a decree of the Court whereas the title execution case No. 1/2013 is pending before the learned District Judge, Kamrup for execution of the interim award dated 22.6.2003 as affirmed and upheld by the learned Court of Addl. District Judge by its judgment and order dated 30.11.2012 and by suppressing the aforesaid facts the petitioners have preferred the present petition. The petition u/s 12 of the Contempt of Courts Act lies only if there is a disobedience to any judgment decree or direction or willful breach of undertaking given to the Court. As regards the public notice under the hand of advocate, Sri Tilak Chandra Das it is stated that it represents the correct factual position and clarification given by the petitioners is of no consequence. However, for the purpose of agitating the reconstitution of the firm, the petitioners have chosen the wrong forum and the question of right of reconstitution can be decided by competent Civil Court and opening and operating bank account is absolute prerogative of the respondents which does not require consent of others. By way of filing additional affidavit, the respondents brought on record the legal document and orders of the Court pertaining to the title execution No. 1/2013 and the order dated 30.10.2012. It has been submitted that the proceeding of the said execution case was kept in abeyance by order dated 30.8.2013 till disposal of the appeal before this Court and after disposal of the Arb. Appeal No. 5/2003 dated 9.6.2017, the petitioners have not taken any step for the execution of the case. 8. An additional affidavit has also been filed by the petitioners contending that they have obtained a certified copy of reconstitution of partnership deed dated 5.7.2017 which is w.e.f 1.7.2017 and the same was made on a invalid stamp paper dated 12.3.2013. The clause of the sale deed reflects that thus purported reconstruction have been done in pursuance of a family settlement in presence of three persons namely Parsamal Loonawat, Jethmal Sethia and Shayam Sundar Agarwal. Thus it contends by the petitioners that the same has been done deliberately in contravention of the order dated 9.6.2017 passed by this Court in the appeal. Thus it contends by the petitioners that the same has been done deliberately in contravention of the order dated 9.6.2017 passed by this Court in the appeal. During the course of hearing of the appeal, the same matter of family settlement was not brought to the notice of the Appellate Court, so such reconstitution of partnership deed and family settlement is nothing but a desperate mean adopted by the respondents is to frustrate and overreach the order passed by this Court in appeal, as the petitioners were never made a party to such family settlement. Further the contention that such family settlement was made in presence of three persons, one of which Jethmal Sethia denied his presence at the time of such settlement to which he specifically informed the petitioners through written communication. Certain other matters have been stated in the petition about the opening and operating the current account by the respondents, unauthorizedly without informing the petitioners with mala fide intentions, by misusing the hotel funds etc. 9. The said aspect has been refuted by the respondent's side by filing affidavit in reply that such an allegation can only be decided by Civil Court. It is also denied that the stamp paper dated 12.3.2013 is a valid one for reconstruction of the firm within a period of 4 (four) months from its execution within meaning of Section 23 of Registration Act and use back dated stamp paper is not prohibited under the Act. Further the allegation of execution of family settlement by fraud cannot be the subject matter of instant proceeding and case is liable to be dismissed. 10. I have heard the submission of learned counsel for both the parties. According to the learned counsel for the petitioners Mr. G N Sahewalla execution of such order of the arbitrator is non-est in view of such execution of new partnership deed on the part of the respondents. Relying the decision of Sri Krishana Singh Vs. Mathura Ahir and another, (1981) 4 SCC 421 it has been submitted that as the respondent has shown utter disregard to the order of this Court by such deliberate act the respondent is liable to face the contempt of court. Relying the decision of Sri Krishana Singh Vs. Mathura Ahir and another, (1981) 4 SCC 421 it has been submitted that as the respondent has shown utter disregard to the order of this Court by such deliberate act the respondent is liable to face the contempt of court. I have gone to the decision so relied by the petitioners it reveals that it was a case wherein the judgment debtor despite knowing the fact that the disputed land is not belong to him, refused to deliver the decreetal property to the decree holder by showing false pretext, in spite of direction of the Hon'ble Supreme Court, it was held that it was a fit case to draw contempt proceeding. The aforesaid decision is not applicable to the present case. 11. On the other hand the learned counsel for the respondents Mr. Bhati has drawn the attention of the Court's order of the execution case which is still pending and has submitted that it was incumbent on the part of the petitioners to proceed with the execution case after disposal of the appeal before this Court for proper execution of the order in terms of Section 36 of the Arbitration and Conciliation Act and without following the proper procedure the petitioners have chosen wrong forum to file the case. Reliance has been placed on the decision in Kanwar Singh Saini Vs. High Court of Delhi, (2012) 4 SCC 307 wherein the matter of enforcement of interim or final order/decree of the Court including undertaking given to the Court and the role of execution vis-a-vis contempt proceeding has been dealt with and held that "proper and advisable" first mode for enforcement of orders is to file an application for execution to the court where suit is pending and in case suit has been decreed. It has been held that contempt jurisdiction attracted when disobedience of Court's order or undertaking to the Court is willful and contumacious. The relevant para 23 and 30 of the judgment (as relied by the learned counsel for the respondents) is quoted below: "23 When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, "that performance cannot be enforced in any other manner". When an Act creates a right or obligation and enforces the performance thereof in a specified manner, "that performance cannot be enforced in any other manner". Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act. (See Doe d. Bishop of Rochester V. Bridges, B & AD p. 859, Barraclough V. Brown, Premier Automobiles Ltd. V. Kamlekar Shantaram Wadke and Sushil Kumar Mehta v. Gobind Ram Bohra) "30 In an appropriate case where exceptional circumstances exist, the court may also resort to the provisions applicable in case of civil contempt, in case of violation/breach of undertaking/judgment/order of decree. However, before passing any final order on such application, the court must satisfy itself that there is violation of such judgment, decree, direction or order and such disobedience is willful and intentional. Though in a case of execution of a decree, the executing court may not be bothered whether the disobedience of the decree is willful or not and the Court is bound to execute a decree whatever may be the consequence thereof. In a contempt proceeding; the alleged contemnor may satisfy the court that disobedience has been under some compelling circumstances, and in that situation, no punishment can be awarded to him. (see Niaz Mohaammad v. State of Haryana, Bank of Baroda V. Sadruddin Hasan Daya and Rama Narang V. Ramesh Narang). Thus, for violation of judgment or decree provisions of the criminal contempt are not attracted. "35" Purposes of initiation of contempt proceedings are twofold: to ensure the compliance with the order passed by the Court; and to punish the contemnor as he has the audacity to challenge the majesty of law. 12. Turning to the present case in hand there is no denial that the petitioner herein already filed an execution case No. 1/2013 for execution of the order and decree dated 30.11.2012 filed on 13.02.2013 which is still pending before the executing court and because of the Arb. Appeal pending before this Court the further execution was kept in abeyance by its order dated 30.8.2013. The Arb. Appeal pending before this Court was disposed on 9.6.2017 whereby the interim award dated 22.6.2003 and affirmed by the learned Court of Addl. District Judge by its judgment and order dated 30.11.2012 is upheld. Appeal pending before this Court the further execution was kept in abeyance by its order dated 30.8.2013. The Arb. Appeal pending before this Court was disposed on 9.6.2017 whereby the interim award dated 22.6.2003 and affirmed by the learned Court of Addl. District Judge by its judgment and order dated 30.11.2012 is upheld. After the said order of the Appellate Court, it was incumbent upon the petitioners to pursue the matter of execution by placing the order of the appellate court before the executing court for execution of the order. But instead of pursuing the same, the present Contempt Case has been filed, whereas such a public notice was issued, much after the order of Appellate Court which may give rise different cause of action. Immediately after disposal of the appeal, the petitioner has not proceeded with the execution case. As has been discussed in the aforesaid decision of Kanwar Singh once statute has provided for adjudication of an award of competent jurisdiction by way of execution under order 36 of the Arbitration and Conciliation Act, the same is to be executed in the said manner and in fact, the petitioners have already adhered for the same but on the basis of the public notice issued at the instance of the respondents, has initiated the present petition. Upon scrutiny of the entire matters on record it can be held by its order, the Appellate Court has simply affirmed the one portion of the award that was passed by the sole arbitrator and there was no such specific direction to the respondent as to which manner such an order is to be executed. As the provision u/s 36 of the Act provide that such an award shall be enforced under the Code of Civil Procedure in the same manner as if it were decree of the Court. The certain other matters that has been raised in this petition about the opening and operative of bank account by the respondents etc. etc. is beyond the jurisdiction. 13. Having regard to the matters on record and factual background, this Court is of opinion that no prima facie case of contempt is made out for drawing proceeding of contempt as sought for. Accordingly the petition stands dismissed.