ABHJJIT TEA COMPANY PVT. LTD.versusTERAI TEA CO. (P) LTD. AND ORS.

                         ABHJJIT TEA COMPANY PVT. LTD.                                    A
                                        v.
                         TERA! TEA CO. (P) LTD. AND ORS.

                                    NOVEMBER 8, 1995

                  [K. RAMASWAMY AND K.S. PARIPOORNAN, J.1.]                               B

              Conten1pl of Co1ut.

              Order of Co1ut-Non-cun1pliance---Co11rt directing refund of an1ount
        held in Coult deposit-Registrar of High Cowt failing in complying with the        C
        Order--A]Jplication for initiating conte111pt proceedings--Held, Registrar was
        absolutely careless and indifferent to give effect to orde1:' passed by this
        Coiut-Such conduct calls fnr strong condentnation-Entries to be nzade in
        confidential character mils.

             A sum of Rs.19, 33,873.74 was held in Court deposit in a Civil Appeal        D
        pending before the Calcutta High Court. Wl1ile disposing of the appeal,
        the Division Bench of the High Court directed its Registrar, respondent
        no. 1, to refund the said amount to the petitioner. By the time the review
        petition was filed, one of the members of the Bench had retired. The Single
        Judge on 21.7.1994, rejected the review petition and directed respondent
                                                                                          E
        no. 1 to hold the money for one week. The petitioner challenged the order
        before this Court hy filing a special leave petition. This Court, on 16.8.1994,
        noticing the fact that another review petition was pending before the High
        Court, set aside the order of the Single Judge. Thereafter, the petitioner
        made applications to respondent no. 1 for refund of the amount.
        Meanwhile, on 2.9.1994, the Single Judge of the High Court also recalled          F
        the earlier order elated 21.7.1_994 making it clear that there would be no
        interim order in view of the order passed by this Court on 16.8.1994; and
        directed to list the review application for hearing. The review application
'       was heard on 16.9.94 when the Court directed the parties to place their
        written submissions by 26.9.1994 and that the Registrar would not make            G
        the refund "for a 11eriod of fortnight."

              The petitioner tiled an application before this Court on 23.9.94
        alleging that the order passed by this Court on 16.8.1994 was not complied
        \Vith and, therefore, contempt proceedings be initiated against the
        Registrar of the High Court, respondent No.1, and other respondents, who          H
                                             825
    1
    826                   SUPl<tME COURT REPORTS (1995] SUPP. 4S.C.R.

A were causing impediments in the refund of the amount to the petitioner.
          Disposing of the contempt application, this Court

          HELD : 1.1. There is no justifiable reason fur respondent no. 1 in
   failing to give effect to the order passed by this Court on 16.8.1994. The said
B order was broughtto his notice more than once. On 2.9.1994 the Single Judge
   of the High Court vacated the earlier order. The petitioner again requested
  .for refund of the amount on the same day and thereafter on 5.9.1994.Prima
   facie the 1st respondent has no excuse, whatsoever, in not refunding the
   amount to the petitioner from 8.9.1994 to 16.9.1994. (828-F-G]

c        1.2. On a perusal of the material on record and in particular the
  counter affidavit filed by the respondent no. 1 in the contempt petition
  itself, it is clear that respondent no. 1 was absolutely careless and indif-
  ferent to give effect to the orders passed by this Court till the Single Judge
  of the Calcutta High Court made the order on September 2, 1994. His
D reprehensible .conduct and indifference to implement the order of this
  Court calls for strong condemnation and he is unworthy to hold any office
  of responsibility. The same need to be entered in his Confidential character
  rolls. The Chief Justice of the High Court would look into his conduct to
  take action as is appropriate in this behalf. (830-B-C]
E
           2. It is sad indeed to notice that the same Judge of th" High Court,
     who passed the order dated 2.9.1994 and vacated the earlier order with-
     holding the refund, passed the order dated 16.9.1994 stating that the 1st
     respondent will not make payment" for a period of fortnight". (828-E]

F          CIVIL APPELLATE JURISDICTION : Contempt Petition No. 249
     of 1994.

                                          IN                                         r

G          Civil Appeal No. 5647 of 1994.

          From the Judgment and order dated 6.5.94 of the Calcutta High
     Court in A. No. 514 of 1992.

           N. R. Choudhary and Somnath Mukherjee for the Petitioner/ Ap-
H pellant.
        ABHIJIT TEA CO. PVT.LTD. v. TERAI TEA CO. (P) LTD.           827

     Santosh Hegde, Kapil Sibal, Dilip Sinha, J. R. Das, H.K. Puri and     A
V.N. Dwivedi for the Respondents/Contemners.

     The following Order of the Court was delivered :

     The petitioner herein is Mis. Abhijit Tea Co. (P) Ltd. and the        B
respondents are (l) Registrar (Original Side), Calcutta High Court, (2)
Mis. The New Red Bank Tea Co., Calcutta and (3) Shri Rabin Pal,
Managing Director of the 2nd respondent Company.

       2. A Division Bench of the Calcutta High Court, while disposing of
Appeal No. 514 of 1992 on 25.4.1994, directed the Registrar (Original C
Side), High Court of Calcutta (hereinafter referred to as 'Registrar'), the
1st respondent herein to refund a sum of Rs. 19,33,873.74 to the petitioner.
The said amount was held in Court deposit. An application for review was
filed in the case. One of the members of the Bench had, by then, retired.
The other member of the Bench, Shyamal Kumar Sen, J. By Order dated D
21.7.1994, rejected the review application, but directed the Registrar to
hold the money, for further one week. The petitioner herein filed Special
Leave Petition (C) No. 9575 of 1994 in this Court and assailed the said
direction. A Bench of this Court noticed, another review application filed
by the party respondent in the meanwhile, was pending disposal, but, by
order dated 16.8.1994 held that the direction issued by the learned single E
Judge was improper and set aside the same. The advocate for the petitioner
wrote to the Registrar on various dates requesting for refund of the' money
amounting to Rs. 19,33,873.74 with interest evidenced by commm1ications
dated 22.8.1994 (Annexure VJ), 24.8.1994 (Annexure VII) and also in-
timated the Registrar by communication of the same date that all for- F
malities for getting the refund, as directed, have been complied with. The
records further disclosed that the matter came up before Shyamal Kumar
Sen, J. on 2.9.1994. The learned Judge recalled the order passed earlier
and made it clear that there will be no interim order in view of the order
passed by this Court dated 16.8.1994 and directed the posting of the review
application on 8.9.1994. The petitioner again applied to the 1st respondent G
for refund on 2.9.1994. The order passed by the learned Judge on 2.9.1994
recalling the earlier order was also brought to the notice of 1st respondent
by communication dated 5.9.1994, with a request to release the amount in
deposit. The review application was heard on 16.9.1994 and the Court
directed the parties to submit written notes by 26.9.1994. Stating that the H
    828                   SL,, REME COURT REPORTS (1995] SUPP. 4 S.C.R.

A review matter is pending for judgment, it was ordered that the Registrar
    will not.make the payment "for a period of fortnight" (Annexure XII). It is
    thereafter the petitioner approached this Court on 23.9.1994 complaining
    that the order passed by this Court on 16.8.1994 has not been complied
    with and that appropriate action in contempt against the 1st respondent
    the Registrar and the parties in the appeal, who are causing impediments
B
    from disbursing the refund to the petitioner, be initiated. The lsl respon-
    dent, Registrar has filed counter affidavits dated 27th of April, 1995 and
    lsl of July, 1995. Respondent Nos. 2 and 3 have also filed a counter
    affidavit dated April/May, 1995.

C         3. We heard counsel. In the review application Shayamal Kumar Sen,
    .l ., by order dated 16.9.1994, observed that the 1st respondent, the
                                           11
    Registrar, will not make the payment for a period of fortnight!!. 'The same
    learned Judge, a!ier noticing the order passed by this Court on 16.8.1994,
    vacated the earlier order withholding payment, by order dated 2.9.1994
D   (Annexure VIII). But the same learned Judge, by order dated 16.9.1994,
    directed the lst respondent not to make payment 11 for a period of fortnight 11
    after the arguments in the review application were heard. In spite of the
    categorical order passed by this Court on 16.8.1994 the refund due to the
    petitioner was withheld. It is sad indeed to notice that the same learned
    Judge who passed the order dated 2.9.1994 passed the later order dated
E   16.9.1994 staling that lst respondent will not make payment "for a period
    of fortnight". What persuaded the learned Judge to hold so, is not clear.

           4. We are of the view that there is no justifiable reason for the 1st
    respondent, in failing to give effect to the order passed by this Court on
F   16.8.1994. It was brought to his notice more than once nn 22.8.1994,
    24.8.1994, etc. about the order passed by this Court. The learned single
    .T udge of the Calcutta High Court vacated the earlier order on 2.9.1994.
    The petitioner again requested for refund of the amount on the same day
    and thereafter on 5.9.1994. P1i11w facie we are of the view that the 1st
    responrl~nt has no excuse, \Vhatsoever is not refunding the amount to the
G   petitioner from 8.9.1994 tu 16.9.1994, (lt was on 16.9.1994 a judicial order
    was passed by the learned .T udgc of the High Court directing withholding         '
     of the refund).

         5. The 1st respondent has, in his affidavit, referred to Rule 3A of
H   Chapter XXTV of the Calcutta High Court, Original Side Rub and Rule
             ABHIJIT TEA CO. PVT. Lm. v. TERA! TEA co. (P) Lm.              829

    51 A of the said Rules to contend that before making the refund a series       A
    of steps had to be taken and that took time. According to him, State Bank
    of India is appointed as the Custodian for any securities, for money ordered
    to be delivered into Court on account of any suit, appeal or other proceed-
    ing and that payments may be made by Stale Bank of India. It is stated
    that the 1st respondent, on receiving a memorandum from State .Bank of         B
    India on 7.9.1994, presented a Lodgment schedule in proper from on
    8.9.1994 itself and the Reserve Bank of India was bound to acknowledge
    the factum of credit of the amount which reached him only on 14.11.1994
    though dated 15.9.1994. It is further stated that unless the 1st respondent
    has knowledge of the fact that the money of the State Bank of India has
    been transferred to Reserve Bank of India and the same is credited to the      C
    account of the 1st respondent, he could not issue a cheque. Thi' he could
    do so only after 14.11.1994 by which time the High Court of Calcutta had
    injuncted him by a judicial order on 16.9.1994 from paying the money.

           6. We heard counsel for the 1st respondent at length. The 1st D
     respondent was also -present in the Court one of the days when the case
     came up for hearing. We perused the relevant rules placed before us. In
     the affidavit of the 1st respondent dated 27.4.1995 in paragraphs 14 to 20
\   steps taken from 6.9.1994 to 16.9.1994 have been catalogued. The 1st
     respondent would say that on receipt of the request from the petitioner's
    counsel on 5.9.1994 and on receipt of the Fixed Deposit Receipts from E
    State Bank of India the same were duly discharged by him for encashrnent
    before maturity and the letter dated 5.9.1994 was written to the Bank to
    credit the principal amount with accrued interest in the deposit account of
     the Registrar with the said Bank and to intimate the principal amount with
    interest. He received a memorandum from the State Bank of India on F
    7.9.1994 stating that a total sum (principal and interest) which has been
    credited to the Deposit Account in this case is Rs. 24, 41,821.74. It was
    transferred to his personal account with Reserve Bank of India on 8.9.1994.
    'f.he only further event that has taken place thereafter and before 16.9.1994
    seems to be that the letter of the petitioner's advocate dated 14.9.1994 to
    take immediate steps for refund was endorsed by him to the Cash Depart- G
    ment on the same day.

          7. It is clear that State Bank of India has intimated the 1st respondent
    on 7.9.1994 that the total sum of Rs. 24,41,821.74 has been credited to his
    Deposit Account. It was transferred to the personal account of the 1st H
    830                   SUPREME COURT REPORTS (1995) SUPP. 4 S.C.R.

A respondent on 8.9.1994. From 8.9.1994 till 14.9.1994 no step was taken to
  expedite the refund to be made. A casual statement is made that on
  14.9.1994 the letter of the petitioner's advocate was endorsed to the Cash
  Department. On a perusal of the material on record and in particular the
  counter affidavit filed by the first respondent in this contempt petition
  itself, it is clear that the first respondent was absolutely careless and
B
  indifferent to give effect to the orders passed by this Court till the learned
  Single .I udge of the Calcutta High Court made the order on September 2,
  1994. The first respondent would appear to have thought that delay is a
  safe route to tide over the devil and deepsea forsaking constitutional duty       ·~
  cast on him under Article 142 of the Constitution, as an arm of the Court,
c to   effectuate the order passed by this Court dated Augmt 16, 1994. His
  reprehensible conduct and indifference to implement the order of this
  Court calls for strong condemnation and in our opinion, he is unworthy to
  hold any office of responsibility. The same need to be entered in this
   confidential ·character rolls. The Hon'ble Chief Justice of the High Court
D of Calcutta would look into his conduct to take action as is appropriate in
   this behalf. However, no one shall be left in lurking doubt that by
   manoeuvre or otherwise one would get over non-implementation of the
   order of the Court and was successful in its avoidance or seem to be
   defeated. The arm of the Court is long enough to reach injustice wherever
   it is found, which should be dealt with appropriately. The learned Single
E Judge passed final order on review application on December 23, 1994
   setting aside the order of the Division Bench to which he was a member.

            8. In this back drop scenario we deem it appropriate that though the
     appeal against the order of the learned Single .Judge is pending before this
F    Court, instead of relegating the parties to seek appropriate direction
     therein, as a part of this order and as a logical consequence, we direct the
     petitioner to withdraw the amount of furnishing bank guarantee to the
     satisfaction of the Registrar of the High Court, Calcutta and the withdrawal
     will be subject to the result in the appeal filed against the order of the
     learned Single Judge of the High Court dated December 23, 1994.
G
            9. The contempt application is accordingly disposed of.


     R.P.                                                   Petition disposed of.


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