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2019 DIGILAW 306 (CAL)

BHARAT HI-TECH (CEMENT) PRIVATE LIMITED v. AJAY SENGUPTA

2019-03-05

SAMBUDDHA CHAKRABARTI

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JUDGMENT : SAMBUDDHA CHAKRABARTI, J. 1. In this application for contempt, the petitioner alleges that in the year 2009-10 as per various orders placed by the alleged contemnor under a certain scheme, the petitioner supplied various quantities of its manufactured cement products as per the requisite qualities to the office of the respondents in the writ petition. The petitioner raised bills and invoices to the tune of Rs. 6,33,558/- which was not paid by the respondents to the writ petition despite various demands made by the petitioner company. 2. The petitioner filed a writ petition being WP No. 10077 (W) of 2015 inter alia praying for a direction upon the respondents to disburse the said sum of Rs. 6,33,558/- along with an interest @ 18% per annum. 3. The said writ petition was disposed of by this Court by an order dated August 10, 2015 inter alia directing the respondent no. 6 to the writ petition i.e. the Block Development Officer, Puncha, to consider the representation of the petitioner within a period of four weeks from the date of communication of the order after giving the petitioner an opportunity of hearing. The respondent no. 6 was further directed to ascertain the truth of the allegation of the petitioner and if it was found that the grievance was genuine he was required to pass necessary and consequential order so that the money due to the petitioner, if any, might be paid to the petitioner within six weeks thereafter. It was further directed that in the event the respondent no. 6 was of the opinion that the claim was not genuine, he would dispose of the representation by passing a reasoned order. It was further directed that in either case the respondent no. 6 would communicate the decision to the petitioner within a week after it was taken. 4. It has been further alleged in the petition that by a letter dated August 28, 2015, the learned Advocate for the petitioner duly communicated the gist of the order to the alleged contemnor which he received on September 1, 2015. Subsequently, the order was communicated by the present advocate-on-record for the petition on November 6, 2015 with a request to comply with the directions contained in the order. Subsequently, the order was communicated by the present advocate-on-record for the petition on November 6, 2015 with a request to comply with the directions contained in the order. The alleged contemnor herein by a letter, dated December 1, 2015 requested the petitioner to be present before him on December 11, 2015 at 12 noon for a hearing with all relevant papers and documents in support of the claim in connection with the subject case. On that date the petitioner with his authorized representatives appeared before the alleged contemnor and handed over all the relevant papers and documents in support of his claim. But till date he had not passed any reasoned order either allowing or rejecting the claim of the petitioner. In terms of the Court's order the alleged contemnor was to communicate his decision by December 18, 2015. But till date no communication had been received from the alleged contemnor. 5. The petitioner has alleged that the alleged contemnor had deliberately ignored the order of this Court and has committed contempt of this Court by not considering the representation of the petitioner within the period as fixed by this Court, by not ascertaining the truth of the allegations of the petitioner and the truth whether the grievance of the petitioner was genuine and not disposing of the representation of the petitioner by a reasoned order. 6. For the alleged acts as mentioned above the petitioner has filed this application for contempt alleging deliberate violation of the order of the Court. After hearing the learned advocate for the petitioner, this Court issued a Rule on June 25, 2018. Pursuant to the same the alleged contemnor appeared personally and filed his answer to the Rule in the form of an affidavit. 7. In the affidavit the alleged contemnor has admitted that the order of the Court passed in the writ petition was communicated to his office on September 1, 2015. He said that he instructed the Dealing Assistant to issue notice to the petitioner asking him to appear before him on December 11, 2015 with all the relevant documents. On behalf of the petitioner Sri Sanjoy Kumar Jalan appeared before him and produced some documents in support of the alleged claim. He said that he instructed the Dealing Assistant to issue notice to the petitioner asking him to appear before him on December 11, 2015 with all the relevant documents. On behalf of the petitioner Sri Sanjoy Kumar Jalan appeared before him and produced some documents in support of the alleged claim. Since the said documents were not legible he asked to appear again on December 28, 2015 along with legible copies of the documents for ascertaining the truth of the allegation of the petition. On December 28, 2015 the matter was taken up for hearing but despite due notice none appeared on behalf of the petitioner. The Dealing Assistant was requested to keep the file ready so that as soon as the legible documents were made available by the petitioner the matter would be disposed of as per the order of the Court. 8. The alleged contemnor has further stated that the next date of hearing on December 28, 2015 was fixed on December 11, 2015 in the presence of the representative of the petitioner. The representative of the petitioner did not oppose the same but he did not take part in the proceeding which was held on December 28, 2015. Since the Court had directed the alleged contemnor to ascertain the truth of the claim of the petitioner it was incumbent upon him to go through the original records which the petitioner failed to produce along with the legible copies of the documents on December 28, 2015. For this, he could not proceed further in the matter. 9. The petitioner filed an application for contempt being CPAN No. 1514 of 2016 and served a copy to the office of the alleged contemnor on March 26, 2018. On June 11, 2018 the Dealing Assistant was inter alia asked to issue another notice to the petitioner fixing the date of hearing on July 6, 2018 since the file was ready for disposal subject to availability of some legible documents to be made over by the petitioner. 10. On July 6, 2018 a representative of the petitioner was present at the hearing; two representatives of the respondents were also present. The written statement submitted by the respondents was kept in the file but the petitioner could not produce the legible copies of documents in question. 10. On July 6, 2018 a representative of the petitioner was present at the hearing; two representatives of the respondents were also present. The written statement submitted by the respondents was kept in the file but the petitioner could not produce the legible copies of documents in question. In course of hearing it was revealed that Sri Satyendranath Kisku, the erstwhile Sahayak, had received a particular challan, dated February 19, 2010. The Dealing Assistant was asked to issue notice to Sri Kisku requesting him to be present on July 11, 2015 for recording his statement. The petitioner was also requested to remain present on that date. 11. At the hearing held on July 11, 2018 all parties were present. Sri Satyendranath Kisku submitted his statement in writing, parties were given opportunity of hearing. Sri Kisku categorically denied that the signature appearing on the memo, dated February 19, 2010 was not his signature and he had no idea about the supply of those articles. He has cross-examined by the representative of the petitioner. From this, the alleged contemnor concluded that the then pay clerk did not receive the articles. 12. The documents placed before the alleged contemnor were duly verified and examined and the signatures of the receiving persons were carefully taken into account for ascertaining the genuineness of the claim made by the petitioner. It was found that a sum of Rs. 8,67,039/- paid to the petitioner was correct and the remaining claim could not be substantiated by acceptable documents. As such, the claim of the petitioner could not be acceded to. 13. The alleged contemnor further states that typed copies of certain orders were sent to the petitioner. He signed those orders to establish their authenticity and sent them to apprise him to the sequence of events in dealing with the matter along with the final order. He says that there was no willful violation of the order of this Court. He had waited bona fide with the expectation that the legible or original copies of the documents would be produced by the petitioner enabling him to ascertain the truth of the claim. The order dated August 10, 2015 has now been complied with and the delay in passing the order was not willful or deliberate. 14. He had waited bona fide with the expectation that the legible or original copies of the documents would be produced by the petitioner enabling him to ascertain the truth of the claim. The order dated August 10, 2015 has now been complied with and the delay in passing the order was not willful or deliberate. 14. One thing stands out very clearly that the alleged contemnor did not comply with the Court's order within the time framed fixed by the Court. Admittedly, a copy of the order was received by the alleged contemnor on September 1, 2015. The direction upon the respondent no. 6 was to consider the representation of the petitioner within a period of eight weeks from the date of the communication of the order after giving the petitioner an opportunity of hearing. Eight weeks' time had expired on or about October 27, 2015. There is no explanation in the affidavit of the alleged contemnor why he had directed his Dealing Assistant on December 1, 2015 to issue notice to the petitioner for a hearing on December 11, 2015. Even if the Puja Vacation had intervened, he could have done it excluding the period of Puja or even in the month of November which he did not. That by itself shows that he had not complied with the Court's order. 15. Even if the petitioner failed to turn up on December 28, 2015, the alleged contemnor was not supposed to keep the matter pending in violation of the Court's order. Undoubtedly the Court had directed him to give the petitioner a hearing before disposing of the matter. But the Court had also fixed the time limit for discharging his duties at various stages. In the first place fixing December 11, 2015 as the date of the first hearing by itself was a violation of the Court's order. Secondly, there was no reason in keeping the matter pending for such a long period merely because the petitioner had failed to turn up on a certain date. If the alleged contemnor were in doubt he could have sought for a further direction from the Court. 16. Alternatively, he could have issued another notice which he did on June 11, 2018 fixing the next date of hearing on July 6, 2018. This was obviously after receiving a copy of the application for contempt. If the alleged contemnor were in doubt he could have sought for a further direction from the Court. 16. Alternatively, he could have issued another notice which he did on June 11, 2018 fixing the next date of hearing on July 6, 2018. This was obviously after receiving a copy of the application for contempt. Here also there was significant delay in issuing the notice as he had received the application for contempt on March 26, 2018. The Rule was served upon his office on July 11, 2018. 17. There was no explanation why the alleged contemnor suddenly decided to proceed with the matter after waiting for two and a half years. It must have been the service of the application for contempt that had activated him to action. One may reasonably conclude that if the petitioner had not filed the application for contempt, the matter would have hibernated for a far longer period. That apart, if for non-production of documents and legible copies by the petitioner the alleged contemnor could not take any step, as has been his stand in the affidavit, one wonders how he could issue a fresh notice on June 11, 2018. Thus, the reason mentioned by him for his inaction was not the real reason. 18. A more important issue to be decided in this application is not how he had disposed of the claim of the petitioner, but when he had. The Court had directed the alleged contemnor to take a decision on the claim of the petitioner. The manner of disposal and the decision to be taken on it was left to the wisdom of the alleged contemnor. But the Court definitely fixed the time limit for the disposal of the claim which the alleged contemnor had violated. The explanation sought to be given by him in his affidavit does not inspire much confidence that the alleged contemnor really decided to honour the order of the Court by adhering to the time frame fixed by it. A marginal delay incompliance with the Court's order, if accompanied by sufficient explanation, might have been excused. But fixing the date of hearing long after the expiry of the period within which the court had directed the alleged contemnor to consider the claim and then to keep it pending for two and a half years was undoubtedly against the specific and unmistakable direction of the Court. 19. But fixing the date of hearing long after the expiry of the period within which the court had directed the alleged contemnor to consider the claim and then to keep it pending for two and a half years was undoubtedly against the specific and unmistakable direction of the Court. 19. This is exactly not what is expected of a person holding a responsible post, particularly a civil servant. The statement of the alleged contemnor that the order of the Court has been ultimately complied with on July 11, 2018 is hardly any defence to the violation of the Court's direction to comply with it within a certain timeframe. In the case of Phonographic Performance Ltd. Vs. Amusement Caterers (Peckham) Ltd. reported in, (1963) 3 AllER 493, the Court of Chancery observed that subsequent compliance with an order will not confer immunity for past disobedience. In Chhaganbhai Norshinbhai Vs. Soni Chandubhai Gordhanbhai reported in, AIR 1976 SC 1909 , the tenant surrendered possession after the initiation of the contempt proceeding. The Supreme Court observed that that made no difference to the initial wrong committed. Thus even if the order was complied with after the Rule was issued and the initiation of the contempt proceeding and definitely after the receipt of notice of contempt upon the alleged contemnor, it is hardly any defence available to him for not complying with the Court's direction within the timeframe. 20. I, therefore, hold the alleged contemnor guilty of contempt and sentence him to pay fine of Rs. 1,000/- within three weeks. In default, he shall undergo simple imprisonment for two days. 21. With the direction as above, the contempt proceeding is dropped. 22. Rule made absolute. 23. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.