Holding

The term "allotment" in the order includes delivery of possession and registration of sale deeds, and the respondents' actions constituted contempt of court.

Summary

The petitioners, Major Genl. B.M. Bhatiacharjee (Retd.) and another, alleged that Russel Estate Corporation and its managing partner had allotted two flats on the 8th floor to third parties in violation of a Supreme Court order dated 1 August 1991 which prohibited any further allotment of flats. The respondents contended that the alleged allotments were merely the execution of pre‑existing sale agreements dated 26 April 1991, and that delivery of possession and registration of sale deeds did not constitute "allotment" within the meaning of the order. The Court examined the meaning of "allotment" in the specific context and held that it reasonably includes the making over of the flats, i.e., delivery of possession and registration of sale deeds, not merely the execution of an agreement. Consequently, the Court found that the respondents, particularly the second respondent, had willfully flouted the order and were guilty of gross contempt of court. The Court rejected the respondent's conditional apology, sentenced the second respondent to one month’s imprisonment, imposed a fine of Rs. 2,000 and ordered costs, and allowed the contempt petition.

Issues considered

The proper interpretation of the term "allotment" in the Supreme Court's interim order dated 1 August 1991.
Whether the delivery of possession and registration of sale deeds after the order amounted to a violation of that order.
Whether the respondents' conduct amounted to contempt of court under the Contempt of Courts Act, 1971.

Legislation cited

Contempt of Courts Act, 1971s. 12

Subjects

contempt of courtallotmentcourt orderreal estatesale deedpossessionSupreme Court of IndiaContempt of Courts Actimprisonmentfine

Judgment

A MAJOR GENL. B.M. BHATIACHARJEE (RETD.) AND
ANOTHER
v.
RUSSEL ESTATE CORPORATION AND ANR.

FEBRUARY 4, 1993
B
[KULDIP SINGH AND B.P. JEEVAN REDDY, JJ.]

Contempt of Courts Act, 1971:

C Section 12--Court's orde!'-Direction not to make further 'allotment' of
flats-Breach of orde~uilty of Contempt of Coun-Punishment-lmposing
of

Worcif & Phrases:

"Allotment"-Meaning of
D
The present Contempt Petition has been tiled complaining that the
Respondents had allotted certain flats in favour of third parties in viola-
tion of this Court's order dated 1.8.91. The Petitioners' interest has been
in respect of two flats on the 8th floor. They claimed that the said flats had
E been allott•d to third parties in j~·~uary, 1992, long after this Court's
'·•~ ;~ "
order dated 1.8.91. It was also contended that the agreement to sell was a
fabricated document. 11, •·"
I
The Respondents contended that the said flats were allotted on
26.4.91 itself, though possession of the flats was handed over on 17.8.1991,
F and sale deeds were executed and registered in March 1992. It was further
contended that inasmuch as the agreement for sale was entered into long
before the orders of this Corot were issned, there was no qnestion of
disobedience of the orders of this Court.

G Finding the Respondent guilty of Contempt of Court, this Court,

HELD : 1.1. Even assuming that the agreement of sale dated
. 26.4.1991 is true, the respondents have committed gross .contempt of this
Court by their brazen violation of the order dated 1.8.1991. By the s.aid
order this Court directed the respondents 1 and 2 not to make 'any
H further allotment of any other flats in the building in dispute with effect
750
BHATIACHARJEE v. RUSSEL ESTATE 751

from today'. The word 'allotment' must be understood reasonably and A
having regard to the context. The first respondent is not like a Govern-
ment Department or Public Corporation where an allotment order or
allotment letter is issued from the office in pursuance or which other steps
are taken. There is no such thing as 'allotment' in this case. According to
the Respondents there was first an agreement or sale, then delivery or B
possession and finally a registered sale deed. In the context and cir-
cumstances of the case, the word 'allotment' in the said order means
making over of the flats; it means delivery of possession and registration
of the salo-deeds. An agreement of sale, that too unregistered, has DO
significance in the context, difficult as it is to verify its truth and correct-
ness. This court could not be presumed to have interdicted such an C
uncertain thing. Admittedly the respondents bad represented to this
Court, at the time the said order was passed, that they have already
entered into agreements of salE in respect of the flats and yet this Court
chose to pass the said order. In the circumstances, it cannot mean any-
-~ thing else than delivery of possession of Rats and their sale. It may also D
•,
mean an agreement of sale but its meaning is certainly not confined to an
agreement of sale. To say so is to rob the order of any meaning or content.
There could not have been any doubt in the mind of the Second Respon-
dent with respect to the meaning of the order. In case of any doubt the
least he could have done was to ask for a clarification of the said Order.
He could well have represented that ·be had already entered into an E
agreement of sale on 26.4.1991 in respect of these Rats and that be may be
permitted to deliver possession and/or execute sale-deeds in respect of the
said flats in favour of third parties. He did nothing of the sort. Having
placed a highly restrictive and unwarranted interpretation upon the order
of this Court, he went ahead and not only delivered possession of the Rats F
to third parties subsequent to the said order but also registered sale-deeds
in their favour. He thus rendered the said order nugatory.
[755E-H, 756A-E]

1.2. The conduct of the second respondent as evidenced from the
material on record establishes beyon doubt that he was trying to play with G
this Court and was consistently flouting its orders. [758H, 759A]

)- 2. So far as the apology tendered by the second respondent is
concerned it is not really an unconditional apology. While tendering apol-
ogy the second respondent bas tried to defend his action. Even if it is H
> ~-

752 SUPREME COURT REPORTS [1993) 1 S.C.R.

A considered as unconditional apology this Court is not inclined to accept
the same having regard to the conduct of the respondent. Accordingly, the
apology tendered by Respondent No.2 is rejected. [759E-G] '?"' '\,.,
3. The second respondent is guilty of Contempt of this Court.
Having regard to the facts and circumstances of this case, a sentence of
B one month's imprisonment in addition to a fine of Rs. 2,000 is imposed
upon him. The fine shall be paid into this Court within two weeks and in
default thereof the second respondent shall undergo a further imprison-
ment of two weeks. [760A-B]
'""'
c of 1992.CIVIL APPELLATE JURISDICTION : Contempt Petition No. 159
IN

Special Leave Petition (C) No. 12709 of 1991.
-
D From the Judgment and Order dated 26.4.1991 of the Calcutta High ...,..
Court in Appeal No. 232 of 1990.

M.L. Verma, R. Mukherjee, J. Gupta and M.L. Chibber for the
Petitioners.

E Ranjan Dutta, Mrs. N. Dutta, Mrs. Mridula Ray and M.N. Shroff for
the Respondents. ~.

The Judgment of the Court was delivered by '

B.P. JEEVAN REDDY, J. In a suit for specific performance certain
F interlocutory orders were passed by a Single Judge of the Calcutta High
Court. On appeal a Division Bench of the said Court modified the said
orders. A number of special leave petitions were filed in this Court against
the orders of the Division Bench. Though the petitioners m these special
leave petitions are different, the contesting respondents - in all these cases
are common, namely Russel Estate Corporation and its managing partner
G
Sri Hari Narayan Bhan.

For the purpose of this petition, it is enough to mention that each of
the petitioners in these S.L.Ps. is claiming to be entitled to allotment of
one or more of the flats being constructed by the respondents at Calcutta.
'""'
H Their complaint has been that ignoring the agreements in their favour, the
BHAITACHARJEE v. RUSSEL ESTATE [JEEVAN REDDY J.] 753

respondents have been allotting the constructed flats in favour of third A
parties thereby seeking to defeat their rights. On 1.8.1991 a Bench of this
Court comprising S. Ranganathan, M. Fathima Beevi and N.D. Ojha, JJ.
passed the following order in I.A. No.2 of 1991 after hearing the respon-
dents.

"Counsel accepts notice. In the meantime, till this B
Special Leave Petition is disposed of, respondents 1 & 2
should not make any further allotment of any other flats
in the building in dispute, with effect from today.

Counsel for the petitioner contends that the allotment C
of the flat, originally allotted to him, to some other person
violates an oral order of a Division Bench of the High
Court. It will be open to the petitioner to move the High
Court for appropriate relief in this regard if so advised."

This Contempt Petition is filed complaining that the respondents D
have allotted certain flats in favour of third parties in violation of the said
order.

So far as the petitioners in this Contempt Petition (Major) Genl.
B.M. Bhattacharjee and Smt. S. Laba) are concerned, they claim to be E
interested in the flats on the 8th floor of the said building. At any rate the
complaint in this Contempt Petition pertains to the said two flats. The
petitioners say that the said flats have been allotted to the third parties in
the month of January, 1992. They rely upon the report of a group of
investigators (National Bureau of Investigation) in support of the said plea.
F
Notice.was issued to the respondents. In their counter (filed by Shri
Hari Narayan Bhan) it is stated that the two floors on the 8th floor
(described as east and west flats) were allotted on 26th April, 1991 itself .
i.e., long prior to the order of this Cowl dated 1.8.l991. H is denied that
the allotment of said flats took place in the month of January, 1992. The
correctness of the Report of the National Bureau of Investigation is dis- G
puted. It is, however, conceded that the possession of the said flats was
handed over to the said third parties on 17th August, 1991 - which is
admittedly a date subsequent to the date on which this Cowl passed the
aforesaid restraillt order. It is also not disputed by them that the registered
sale-deeds in respect of said flats in favour of the said third parties were H
>
754 SUPREME COURT REPORTS (1993] 1 S.C.R.

A also executed in March, 1992.
-I
The report of the Receiver (Smt. Pratibha Bonnerjea, a retired Judge.
of the Calcutta High Court who was appointed as such by an order of this .. -1'",-
Court dated 7.1.1992) also supports the petitioner~' allegations. The
relevant portion of the Report reads as follows:
B
"Present condition of these two flats in the 8th floor:

The western apartment in the 8th floor is occupied by one
Mr. & Mrs. Kamal Thavrani, Ms. Thavrani said that they
c are in occupation of the flat from December, 1991. Mr.
K.K. Thavrani said that he had taken both the eastern and
western apartments in the 8th floor. He produced a copy
of the agreement executed on 26.4.91 on a stamp paper
purchased on 26.4.91 by M/s. Russel Estate Corporation.
The agreement relates to both the flats on the 8th floor for
D a total consideration of Rs. 13,40,000. It is stated that the
occupiers have taken possession in December, 1991. Mr.
Thavrani submits that the conveyance have been registered
in March, 1992 but he is unable to produce the registered
conveyance as the same is still lying with the Registrar. We
E found eastern flat was not complete. Wooden work was
gcing on. Photos Nos. 3 to 5 are attached to this effect." ~

At the rearing of this Contempt Petition the respondents' counsel
took the stand that the delivery of possession on 17.8.1991 and the execu-
tion of the registered sale-deed in March, 1992 do not constitute violation
F of the Order dated 1.8.1991. His submission is that this Court merely
restrained the allotment of flats. Allotment, according to the learned
counsel, means entering into the agreement of sale. Inasmuch as the
agreement of sale with respect to the said two flats on the 8th floor was
entered into long prior to the said Order of this Court, it i> submitted, there
G is no disobedience to the order of this Court. It is submitted that delivery
of possession and the registration of the sale-deed(s) is in pursuanee of the
aforesaid agreement of sale and not in pursuance of any agreement of $ale
entered into on or after 1.8.1991. The counsel further submitted that even
on the date when the aforesaid order was passed on 1.8.1991, the second
H respondent had represented to this Court that agreement of sale in respect
BHATIACHARJEE.v. RUSSEL ESTATE [JEEVAN REDDY,J.] 755

of all the flats have already been entered into. In this view, it is submitted, A
there has been no misrepresentation or suppression of relevant facts on
~ their part.

We may mention that when we indicated our disagreement with the
above stand during the course of hearing, the counsel for the respondents,
Shri Dutta took time till 14th of January, 1993 to file a further affidavit/ad-
B
ditional counter and/or documents in continuation of the counter already
filed. The second respondent has accordingly filed a further affidavit on
~ 14.1.1993.

The counsel for the petitioners' disputes the correctness, genuineness c
- and validity of the agreement, allegedly entered into on 26.4.1991 in respect
of said flats. According to him, it is a fabricated document. He points out
that the stamp paper for the said agreement of sale was purchased by the
Russel Estate Corporation and not by the purchaser of the flats. It is also
pointed out that the agreement is not a registered one and that it could
D
have been fabricated at any time putting a back date.

It is not necessary_ for us to pronounce upon the disputed question
whether the agreement dated 26.4.1991 relating to the said two flats on the
8th floor is true and genuine. Assuming that the said agreement is true, we
are yet of the opinion that the respondents have committed gross contempt E
. ....1, of this Court by their brazen violation of the order dated 1.8_.1991. By the
said order this Court directed the respondents 1 and 2 not to make "any
further allotment of any other flats in the building in dispute with effect
from today." Now what does the word "allotment" mean in the context. In
our opinion, the said word must be understood reasonably and having F
regard to the context. The first respondent is not like a Government
Department or Public Corporation where an allotment order or allotment
letter is issued from the office in pursuance of which other steps are taken.
The first respondent is a proprietory concern, according to the petitioners,
whereas according to tbe respondents it is a partnership concern. In either
event, there is no such thing as "allotment!! in its case. Even now, it is not
G
their case that they have issued any orders or letters of allotment. Accord-
ing to them, there was first an agreement of sale, then delivery of posses-
>- . sion and finally a registered sale deed. We are of the opinion that in the
context and circumstances, the word "allotment" in the said order means
making over of the flats. In other words, it means delivery of possession H
756 SUPREME COURT REPORTS (1993) 1 S.C.R.

A and registration of the sale-deeds. An agreement of sale, that too un-
registered, has no significance in the context, difficult as it is to verify its
truth and correctness. This court could not be presumed to have inter- -~
dieted such an uncertain thing. It must be remember that even according
to tlie respondents they had represented to this Court, at the time the said
order was passed, that they have already entered into agreements of sale
B in respect of the flats and yet this Court chose to pass the said order. In
the circumstances, it cannot mean anything else than delivery of possession
of flats - and their sale. It may also mean an agreement of sale but its
meaning is certainly not confined to an agreement of sale. To say so, as do
the respondent, is to rob the order of any meaning or content.
c
,.
Mr. Dutta, the learned counsel for the respondents contended that
the second respondent understood the allotment in a particular manner
and that the said misunderstanding, if any, was bona fide. We are not
-
prepared to agree. Firstly, there could not have been any doubt in the mind
of Respondent with respect to the meaning of the order. Secondly, assum-
D y
ing that he had any doubt regarding its meaning, the least he could have
done was to ask for a clarification of the said Order. He could well have
represented that he had already .entered into an agreement of sale on
26.4.1991 in restpect of these flats and that he may be permitted to deliver
possession and/or execute sale-deeds in respect of said flats in favour of
E third parties. He did nothing of the sort. Having placed a highly restrictive
and unwarranted interpretation upon the order of this Court, he went
~-
ahead and not only delivered possession of the flats to third parties
subsequent to the said order but also registered sale-deeds in their favour.
He thus rendered the said order nugatory. It was not open to the respon-
dents to place a convenient interpretation upon the order and proceed to
F
act upon it, thereby totally nullifying the order of this Cotirt.

In this context, we ought to refer to the conduct of the second ......__ -
respondent as disclosed from the order of this Court dated August 7, 1992
to which one of us (B.P. Jeevan Reddy, J.) was a party. The first two
G paragraphs of the said order may be quoted in rull.

"In these special leave petitions notice was duly served
on the respondents and the matters came up for hearing - --'-._
initially before a Bench of this Court comprising of Ran-
H ganathan J., Fathima Beevi J. and Ojha J. on 31.7.91 and
BHATIACHARJEE v. RUSSEL ESTATE [JEEVAN REDDY,J.] 757

1.8.91 when the parties were heard and certain interim A
orders were passed. Thereafter it was listed before a
y Bench of this Court (of which Ranganathan J. and V.
Ramaswami J. were members) on a number of occasions
at which the respondents were represented and no objec-
tion was voiced against the hearing of the matters by the
B
said Bench. However, sometime later an attempt was
made on behalf of the respondents to have these matters
transferred from this Bench to some other Bench on the
..,._ allegation that one of the Judges (Ranganathan J .) was
biased against the respondents. This request was. made
before a Bench presided over by the learned Chief Justice c
by the second respondent who appeared in person and
• made the request for the transfer of the case. The prayer
was rejected by the learned Chief Justice on 11.11.1991.
Thereafter the matter was again listed before a Bench
consisting of Ranganathan J ., V. Ramaswami J. and Ojha D
-< J. On different occasions without any demur from the
parties. It was then listed before a Bench comprising of
Ramaswamy J., Yogeshwar Dayal J. and Mohan J. on
4.3.92. This Bench directed the caseo to be posted before
a Bench of which Ranganathan J. is a member. About this
time, an application seems to have been presented to the E
. ..-1____ Registrar that this case should be transferred to some
other Bench. However, the matters came up before us
again some time last week when counsel for the respon-
dents agreed that the matters may be Ii.sled this week. The
matters were listed yesterday. A person claiming to be the F
son of the second respondent made a request that the
matter should not be heard by this Bench. We rejected
_,.. this request and made it clear to him that he should make
arrangements for the conduct of the case. The matters did
not reach yesterday and when the matters came up today,
a letter dated 6.8.92 written by the second respondent to G
his counsel revoking the counsel's vakalatnama has been
placed before us. But the respondent No. 2 did not appear
before us nor did he make other arrangements for the
conduct of the case. Sri Chatteriec, his advocate on
H
758 SUPREME COURT REPORTS [1993] 1 S.C.R.

A record, app·eared but expressed his inability to conduct
the case since his client had withdrawn the vakalatnama.
We understand that in one of the matters the respondents
are represented by another counsel whose vakalatnama is
also seen to have been revoked but she has not appeared
or sought permission to withdraw from the case. In these
B
circumstances we have no other option but to proceed
against the respondents ex parte.

We are unable to accede to the rtspondents request
made on a previous occasion by the son of the second
c respondent for transfer of case to some other Bench. The
circumstances narrated above would show that the
respondent has appeared before the Bench on several
occasions without protest. The request made for transfer,
after the rejection of the earlier petition by the learned
Chief Justice, is belated and is just an attempt by the
D second respondent to circumvent the order already passed
by the Chief Justice rejecting a request for transfer and
only because the Constitution of the Bench is not to his
liking. Such a request, we are clear, cannot be coun-
tenanced."
E
It should be noticed that the said order dated August 7, 1992 was
passed not only in the special leave petitions but also in this very Contempt
Petition. The attitude adopted by them before the Receiver (Smt. Pratibha
Bonnerjea retired Judge of Calcutta High Court, appointed by this Court
as a Receiver in this case) also discloses the total disregard and disrespect
F the Respondents have towards the orders of this Court. The Receiver says:

"The next day, by a letter dated 22.8.92, Mr. H.N. Bhan
informed me that he would not submit to the order dated
7.8.92 as the Bench was not properly cortstituted due to the
fact that the Hon'ble Mr. Justice V. Ramaswami was one
G
of the judges and that an application would be moved for
recalling the said order. Thereafter, there was complete
non-cooperation by M/s. Russel Estate Corporation."

The conduct of the second respondent as evidenced from the
H aforesaid material establishes beyond doubt that the second respondent
BHATIACHARJEE v. RUSSEL ESTATE [JEEVAN REDDY,J.] 759

was trying to play with this Court and was consistently flouting its orders. A
In the circumstances, the theory of bona fide belief, now put forward before
us by his counsel, cannot be accepted.

We may at this stage deal with the further affidavit filed by the
second respondent on 14.1.1993. In para 3 of the affidavit the second
respondent has stated that he has the highest regard for this Court, that he B
has all along complied with the orders passed by this Court and that he
never intended to flout or defy the orders of the Court. He. stated further
"if in spite of the aforesaid, any order of this Honble Court has been
violated, the same has been so done through mistake, inadvertance and by
a misunderstanding of the meaning and purport of that order and surely C
not intentionally and for which I unconditionally apologise for self and on
behalf of the Respondent firm and I beg to be excused."

Then in paragraphs 4 to 12 he has "without waiving the aforesaid and
fully relying thereupon" repeated the contentions which were urged by his D
counsel before us and which we have dealt with hereinbefore. He stated
that he understood this court's order dated 1.8.1991 as prohibiting only the
entering into of agreements of sale and not delivery of possession or
registration of the sale deeds. All the said contentions we have dealt with
hereinbefore. They need not be reiterated here.
E
So far as the apology contained in para 3 of the second respondent's
further affidavit is concerned, it may firstly be mentioned that it is not really
an unconditional apology though it purports to say so. While tendering
unconditional apology in para 3, the second respondent has tried to defend
his action in the subsequent paragraphs. Secondly, even if we construe F
paragraph 3 as tendering an unconditional apology, we are not inclined to
accept the same having regard to the conduct of the respondent which we
have adverted to hereinbefore with reference to the order of this court and
the report of the Receiver. Accordingly, we reject the apology tendered in
para 3 of the further affidavit.
G
For the above reasons, we hold the second respondent guilty of
Contempt of this Court. Having regard to the facts and circumstances of
this case, we impose a sentence of one month's imprisonment in addition
to a fine of Rs. 2,000 upon the second resp.ondent. The fine shall be paid
into this Court within two weeks from today, in default thereof the second H
760 SUPREME COURT REPORTS (1993) 1 S.C.R.

A respondent shall undergo a further imprisonment of two weeks. The second
respondent shall also pay the costs of the respondents in this Contempt
case which are assessed at Rs. 5,000 within two weeks from today. In case
of failure, the Respondents are free to execute this order as a decree of
Court and recover the same from the Respondents. Mr. H.N. Bhan, who
B is present in the court, be taken into custody forthwith to undergo the
sentence of imprisonment.

G.N. Petition allowed.

-