M/S. NULON INDIA LTD. v. ISHWAR INDUSTRIES LTD.

5. In the first appeal being RFA 23/2020 filed by the Original Defendants challenging the above judgment dated 19th February, 2020, a stay order was granted, subject to certain conditions. However, due to the non- fulfilment of the said conditions, the stay order was vacated. Thus, the judgment/decree dated 19th February, 2020 became executable. After the said decree was passed and before the execution proceedings were initiated against the Original Defendants, the Appellant/Objector - M/s. Nulon India Ltd. (hereinafter, “Nulon”), a sister concern of the Original Defendants filed objections under Order XXI Rule 97 CPC. In the said objections, various false pleas were taken by the Appellant/Objector. The said objections came to be dismissed by the Executing Court, vide order dated 17th December, 2020 in MISC No.74/2020 titled ‘M/s. Nulon India Ltd. v. Ishwar Industries Ltd.’ The present execution first appeal has arisen out of the said order dated 17th December, 2020 (hereinafter, “impugned order”).

6. Vide judgment dated 30th November, 2021, this Court after considering the entire matter disposed of the present appeal and issued show cause notice as to why contempt action ought not to be initiated. The Appellant/Objector relied upon certain allotment letters to claim independent rights in the suit property, which were, in fact, found to have been cancelled. The Appellant/Objector also did not disclose the fact that it had filed suits for declaration in respect of the suit property and the said suits had also been dismissed. All these facts were held back from this Court. A perusal of the cross examination of Mr. K.K. Golyan showed that evasive answers had been given by him.

7. Finally, relying upon the judgment of the Supreme Court in Rahul S. Shah v. Jinendra Kumar Gandhi & Ors. [2021 SCC Online SC 3411], the finding of this Court was that execution petitions are being delayed due to repeated objections being filed by connected parties. The Court had then recorded the false stance taken by the Contemnors, and observed as under:

27. Issue notice to show cause as to why proceedings for contempt/perjury should not be initiated against Mr. K.K. Golyan, Director of the Defendant Companies, and Mr. G.P. Chobey, the Authorised Representative of the Objector, for having concealed the relevant facts before this Court, as also having made false statements before the Executing Court only to retain the possession of the suit property. Let reply to the show cause notice be filed within two weeks..” Submissions in the Contempt Proceedings:

8. Today, pursuant to the show cause issued by this Court as to why proceedings for contempt/perjury ought not to be initiated, both the Contemnors are present in Court and two replies to show cause have been filed by the Contemnors. Apologies have been tendered in the said replies. The said apologies are extracted below: On behalf of Mr. K.K. Golyan “a. That at the outset, it is submitted that Sh. K.K. Golyan who is director of appellant and of other companies since long is respectable and peace loving citizen of India and has utmost regard of courts and court orders and cannot think of committing contempt of court and perjury and humbly submits that if any act of Sh. K.K. Golyan committed in court proceedings that tantamounts to contempt of court/perjury hence he tenders unconditional apology for the same as none of his acts was intentional and deliberate but was absolutely bonafide based on records and on order dated 31.10.2005. Hence Sh. K.K. Golyan without defending his said acts is claiming unconditional apology.” On behalf of Mr. G.P. Chobey “a. That at the outset, it is submitted that Sh. G.P. Chobey who is authorized representative of appellant and is respectable and peace loving citizen of India and has utmost regard of courts and court orders and cannot think of committing contempt of court and perjury and humbly submits that if any act of Sh. G.P. Chobey committed in court proceedings that tantamounts to contempt of court / perjury hence he tenders unconditional apology for the same as none of his acts was intentional and deliberate but was absolutely bonafide based on records and on order dated 31.10.2005. Hence Sh. G.P. Chobey without defending his said acts is claiming unconditional apology.”

9. Mr. C.P. Vig, ld. Counsel for the Contemnors has addressed his submissions. He seeks to justify the conduct of the Contemnors on the ground that the Contemnors were out of station when the matter was argued, and relies upon the said replies to state that Mr. K.K. Golyan and Mr. G.P. Chobey have tendered unconditional apologies.

10. However, in both the replies, reliance has been placed upon the earlier decree dated 31st October, 2005 in Suit No36/2003 titled ‘M/s. Nulon India Ltd. v. The Ishwar Industries Ltd.’ filed by the Appellant/Objector Company to justify their conduct.

11. In the said suit, vide judgment dated 31st October, 2005, an interim order was granted against the demolition of the office portion of Block No.4, Tribhuvan Complex, Iswar Nagar, Delhi-Mathura Road, New Delhi-110065 (hereinafter “suit property”). The operative portion of the judgment and decree dated 31st October, 2005 has been extracted below: “.... If, plaintiff is illegally occupying this portion/suit property, the defendants are always at liberty to claim and seek recovery of possession of the property from the plaintiff. No one in this land is authorized to use force for the purpose of eviction someone from any property, until unless it has sanction of the Law. XXX Accordingly, defendant is restrained from demolishing the office portion of plaintiff in Block No.4, Tribhuvan Complex, Ishwar Nagar, Mathura Road, New Delhi without adopting due process of law. I further restrained the defendant from dispossessing the plaintiff from the office portion of the property and from the plot under the demolished store portion of property in Block no.4, Tribhuvan Complex, Ishwar Nagar, Mathura Road, New Delhi.” Thus, the Plaintiff was well aware that the Objector was in possession of the suit property, however, the Plaintiff chose not to implead the Objector as Defendant in the suit.”

12. It is further submitted by Mr. Vig, ld. Counsel that an SLP has been filed challenging the judgement of this Court, and the same is yet to be listed. However, the details of such SLP have not been provided and only a filing number being Diary No. 7456/2022 has been provided to the Court. No further details are provided. It is also not clear as to when the matter is to be listed before the Hon’ble Supreme Court.

13. On behalf of the Respondent, it is submitted by Ms. Ekta Mehta, ld. Counsel that even now, though, the suit property has been vacated, the Contemnors are failing to pay the mesne profits as per the judgment and decree dated 19th February, 2020. She submits, thus, that the Respondent has been constrained to pursue execution proceedings for recovery of a sum of more than Rs.10 crores, which includes the principal amount of Rs. 6 crores. Considering that even now, despite the vacation of the stay order by the First Appellate Court in RFA 23/2020, the decree is taking time to get executed and the Contemnors are not complying with the decree dated 19th February,

2020.

14. Ms. Mehta, ld. Counsel has also placed reliance on three orders passed in petitions filed by the Contemnors challenging subsequent orders passed by the Executing Court. She relies upon the judgment dated 17th May, 2022 passed by the Coordinate Bench of this Court in a connected petition being CM(M) 455/2022 titled ‘M/s. Gallus Chattels Pvt. Ltd. v. Ishwar Industries Ltd.’, filed by the Contemnors, arising out of the orders passed by the Executing Court, wherein it was held that the attempts of the Contemnors are not bona fide. The extracts of the said order are set out below: “29. As already noted, the petitioner has, after the execution petition was filed by the respondent, filed three petitions before this Court under Article 227 of the Constitution of India.

30. The Supreme Court has in Rahul S. Shah v. Jinendra Kumar Gandhi deprecated, in no uncertain terms, efforts made to stultify execution proceedings and ensure that the proceedings do not continue.

31. I am, prima facie, convinced that the attempts of the petitioner in the present case are not bonafide and that the petitioner is, for reasons recondite, making every efforts to see that the execution proceedings do not move forward.” Analysis and Conclusion:

15. Heard ld. Counsels. The clear position that emerges in the present case is that the suit property has been vacated, however, due to the delay caused by the Appellant/Objector, the Respondent could not enjoy the suit property. Moreover, various incorrect and false pleas were taken before this Court and clever suppressions are resorted to. The attempt clearly was to continue to occupy the premises by resorting to mala fide methods and falsities.

16. Pertinently, vide impugned judgment dated 17th December, 2020, the Executing Court also took cognizance of the conduct of the Contemnors, and the dilatory tactics resorted to by the Appellant/Objector Company in order to delay the suit and the execution thereof, as also, to illegally retain the possession of the suit property. Further, in view of the conduct of the Appellant/Objector and filing of false claim in the Objections, the Executing Court also proceeded to issue Show Cause Notice as to why contempt action should not be initiated against them. The findings of the Executing Court, in this regard, are set out below:

17. Despite the above observations of the Executing Court and the contempt proceedings initiated by the Executing Court, the Contemnors proceeded to make various false statements and raise frivolous pleas which have been extracted in detail in paragraph 25 of the judgement dated 30th November, 2021, and reproduced hereinbelow: “False Stand taken in the Present Appeal

25. In the present Memorandum of Appeal, the following statements have been made: a. That since 17th March, 1994, objector is in peaceful settled possession of property in question of Block No.4, Tribhuvan Complex, Ishwar Nagar, Mathura Road, New Delhi-110065 as purchaser of unit no. 164 and 165 as per allotment letters dated 12.12.1991 and 16.12.1991 having been inducted by vendors i.e., Growth Techno Projects Ltd. who always treated the objector as owner in possession of the property in question of said Block No.4 and who never filed any suit against objector claiming possession and mesne profits and even no such suit was ever filed by respondent against objector which right if any of respondent has lapsed by efflux of time qua objector. b. That the trial court failed to appreciate that objector being a private limited company was a different legal entity as compared to other sister concerns of objector who were also different private limited companies with different directors and judgment and decree passed against defendants in that suit was not binding on objector. c. That the Trial Court failed to appreciate that appellant had purchased unit No. 164 and 165 as per allotment letters dt. 12.12.91 and 16.12.91 and was inducted by vendor GTPL who always treated the appellant as owner in possession of the property in question and he never filed any suit against appellant claiming possession and mesne profits and even no such suit was ever filed by respondent against appellant which right, if any of respondent has lapsed by efflux of time qua appellant but nevertheless it needed trial but trial court without putting objection petition to trial has dismissed the same summarily and the judgment under challenge is liable to be set aside. d. Growth Techno Projects Ltd. sold unit No. 164 and 165 in the said block to appellant against consideration and appellant purchased the same as per allotment letters dt. 12.12.1991 and 16.12.1991 and which were agreed to be treated as agreements to sell and when construction to be raised got delayed, possession of Block No.4 was given to appellant and other sister concerns of appellant on 17.03.1994 by GTPL who was shown as vendor to the knowledge of respondent and respondent was shown as confirming party and in this manner, rights were created in favour of appellant by GTPL which were confirmed by respondent and hence respondent who had not granted any right and rather confirmed the rights given by GTPL has no right to disturb peaceful possession of appellant on any ground whatsoever and to dispossess the appellant from the property in question.”

18. Hence, it was in light of the above findings of this Court, as also, the findings of the Executing Court in respect of the blatantly false statements made by the Appellant/Objector, that this Court deemed it appropriate to issue Show Cause Notice as to why proceedings for contempt should not be initiated against Mr. K.K. Golyan, Director of the Defendant Companies and Mr. G.P. Chobey, Authorized Representative of the Appellant Objector Company. The relevant observations of this Court, vide judgment dated 30th November, 2021, are set out below: “Each of the above statements is prima facie, false to the knowledge of the deponent, who in this appeal is Mr. G.P. Chobey. He is the authorised representative of the Objector Company and also the authorised representative of the Defendants of the group companies/sister concerns. He is obviously authorised by the main Director Mr. K.K. Golyan who has also made incorrect statements in his cross examination. He has concealed the fact that the allotment letters were cancelled and that a suit had been filed challenging the said cancellations. Even today, the submission made on merits by the Appellant/Objector is that there are allotment letters in its favour. Clearly the intention is to misrepresent and mislead this Court.

19. The reliance by the Contemnors on the order dated 31st October 2005 is also misplaced as the injunction against dispossession was only till remedies are availed of through due process. The Defendants in the suit could not have been dispossessed `without adopting due process of law.’ The decree which is presently being executed is in a suit filed in 2005 in which a decree was passed in 2020. So after the injunction granted in 2005, the landlord has availed of the remedies in accordance with law and obtained a decree. The Contemnors cannot continue to rely upon an earlier order in a completely misleading and misrepresentative manner.

20. Further, reliance placed upon the judgment dated 31st October 2005 in Suit No.36/2003 is also misplaced as the ex parte injunction order dated 31st October, 2005 is stated to have been disclosed for the first time in the objections filed before the Executing Court. The said judgment was passed on 31st October, 2005, whereas the suit being CS OS No.1317/2005 leading to the execution proceedings was filed in September, 2005. In the written statements, which were filed in February, 2006 by Mr. Chobey, who was also the main witness in CS OS No.1317/2005 in the suit, the said judgment dated 31st October, 2005 was not disclosed.

21. In the facts and circumstances of the present case, it is clear that impediments and obstacles are being caused, at every stage, by the Contemnors, as also, its Group Companies, other entities and the individuals who are in-charge of the day-to-day functioning of the said Companies. Courts have repeatedly deprecated the practice of creating impediments in the execution of decrees. In the present case, repeated false stances were taken by the Contemnors in order to continue to remain in possession of the suit property. In this view of the matter, this Court is convinced that the present is a case where the Contemnors have no proper justification for their conduct. Even the plea that the Appellant has ownership on the basis of allotment letters is totally untenable as the suits filed by the Appellants challenging the cancellation of the said allotment letters were dismissed, which facts were concealed.

22. In Urban Infrastructure Real Estate Fund v. Dharmesh S. Jain & Anr. [Contempt Petition (C) No.940/2021 decided on 10th March, 2022], the Supreme Court has observed as under:

23. In Pratibha v. Kunwar Singh Tanwar & Ors. [RFA 695/2016 decided on 15th April, 2019], this Court has had the occasion to analyse the law in relation to civil contempt. While holding the Contemnor therein to be guilty of contempt and sentencing her to simple imprisonment for a period of three months, this Court observed as under: “Analysis of the Law

58. The jurisprudence on contempt of Courts is fairly well settled in India. The relevant provisions of the Contempt of Courts Act, 1971, are set out below: “Section 2. Definitions. – In this Act, unless the context other requires, - (a)…………… (b) “civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court; (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which –

(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; ……………… Section 12. Punishment for contempt of court. – (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation. – An apology shall not be rejected merely on the ground that is qualified or conditional if the accused makes it bona fide. (2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it thinks fit. (4)……….(5)………”

59. As held in Louis Vuitton Malletier v. Omi & Anr. (2018) 251 DLT 472, in case of false and misleading statements being made before the Court, the Court can invoke its contempt jurisdiction. The Court specifically observed, following the judgment of the Supreme Court in Dhananjay Sharma v. State of Haryana (1995) 3 SCC 757, that swearing of false affidavit in judicial proceedings results in obstruction of administration of justice. It reveals the intention of the parties in perverting the course of justice. The Ld. Single Judge in the said case observed as under:

36. In any event, the Apex Court in Leila David v. State of Maharashtra, (2009) 10 SCC 337 has held, “Although, Section 14 of the Contempt of Courts Act, 1971, lays down the procedure to be followed in cases of criminal contempt in the face of the Court, it does not preclude the court from taking recourse to summary proceedings when a deliberate and willful contumacious incident takes place in front of their eyes and the public at large………”

37. In the opinion of this Court, the present case is a case of contempt in the face of the Court and therefore, Section 14 of the Act, 1971 applies.”

60. Recently, in the case of National Lawyers Campaign for Judicial Transparency and Reforms and Ors. v. Union of India [W.P.(C) No.191/2010 decision dated 12th March, 2019], the Supreme Court observed as under:

64. This case has shaken the conscious of the Court as to how a sister can, in fact, behave in this completely deceitful and unscrupulous fashion, towards her own brother. She has initially concealed the whereabouts of her brother and repeatedly made false statements as to since when he is missing. She has sold his properties and appropriated all the sale consideration, having scant regard for the Court and to her own role as a sister. The brother’s missing status has not caused any concern to his sister as she has shown no remorse even while appearing in Court and has, in fact, exhibited complete defiance. She has violated orders passed by the court including order dated 31st May, 2018 directing deposit of a sum of Rs.72 lakhs, i.e., the money she has received from the subsequent purchasers and orders 12th October, 2018 and 11th December, 2018 directing deposit of costs. In the overall facts and circumstances of the present case, Mrs. Pratibha is held guilty of contempt of Court. Her conduct, clearly, constitutes even civil contempt, which can be punished by this Court under the provisions of the Contempt of Courts Act, 1971. It is contempt on the face of the court. She is held guilty of contempt of Court and is sentenced to simple imprisonment for a period of three months.”

24. Considering the above settled legal position and that the Contemnors have repeatedly made false and incorrect statements to the Court and have also raised misleading pleas in their pleadings and submissions only to remain in possession of the suit property for more than 15 years after the suit was filed, the contemnors are held guilty of contempt of this Court. The apologies tendered are accepted by the Court subject to the condition that the Contemnors - Mr. K.K. Golyan, Director and Mr. G.P. Chobey, the Authorized Representative of the Appellant/Objector Company shall pay Rs.50,00,000/- and Rs. 20,00,000/- respectively, to the Respondent, within three months. If the said payments are not made, the Contemnors would be liable to be sentenced to imprisonment for 15 days each. Ordered accordingly. If the amounts as directed are paid, the show cause notice for contempt shall stand discharged and adjustment of 50% of the said amount shall be given by the Executing Court as part of the amount payable under the decree.

25. Ordered accordingly. No further orders are called for in this matter.

PRATHIBA M. SINGH JUDGE JULY 21, 2022 dj/ad (corrected & released on 28th July, 2022)