(Per : HONOURABLE MR.JUSTICE C.L.SONI)
1. Party-in-person Pravinchandra Devchandbhai Luhar, proprietor of Bharti Fibers Tubes and Engineering Works, has moved this application complaining breach of the interim order of status quo granted in Civil Application No.5996 of 2004 in Appeal from Order No.278 of 2004, vide order dated 10.8.2004 by learned Single Judge of this Court which was confirmed till final disposal of the Appeal from Order and for taking action under the Contempt of Courts Act against the respondents.
2. In response to the notice issued by this Court, respondent No.1 Managing Director of GSFC, respondent No.2 Dr. Jagdish Padmakant, respondent No.3 Shri Sanat J. Shah and respondent No.4 Lalit Naranbhai Parmar, Deputy Manager (Accounts) in Gujarat State Financial Corporation, have filed affidavit-in-reply.
2.1. Applicant had a grievance about delay in disbursement of loan amount which made his unit non-workable. As could be seen from the facts stated in the Appeal from Order No.278 of 2004, the applicant was initially sanctioned loan amount of Rs.2,60,450/-. Since repayment could be not be adhered to, the applicant had to face coercive action from the Gujarat State Financial Corporation which led the applicant to file Special Civil Application No.3028 of 1986. But, pending the said petition, the unit was taken possession of. The applicant, then, preferred Civil Suit No.658 of 1992 and in the said suit, interim relief was granted in favour of the applicant. The said interim relief, though granted on 4.2.1993, still on the application of the Corporation, the same was vacated on 13.1.2004. Therefore, the applicant filed the above-referred Appeal from Order. With the Appeal from Order, the applicant also preferred Civil Application No.5996 of 2004 and learned Single Judge of this Court vide order dated 10.8.2004, granted interim relief in terms of para 14(B), with clarification that the status quo order dated 25.02.1992 to continue to operate till final disposal of the Appeal From Order.
3. In the Appeal from Order, one more order was passed on 6.12.2004, which reads as under:-
"Mr.Mitul K.Shelat, learned Advocate for the respondent, Gujarat State Financial Corporation Limited, states that he will see to it that a responsible officer looks into the matter and after taking into consideration the facts of the case, shall extend all possible benefits of the scheme, applicable and in operation as on date. He states that this will be done in consultation with the appellant, party-in-person.
The matter is adjourned to 17th December, 2004."
Thereafter, on 7.2.2005, the applicant was directed to approach General Manager of Gujarat State Financial Corporation and the Corporation was to provide document, if any, required by the applicant. It appears that thereafter, the request of the applicant for One Time Settlement was under process, but it could not be resolved and the Gujarat State Financial Corporation decided to put the unit of the applicant to auction and on 8.7.2006, offers for sale of the unit of the applicant were invited through public notice in 'Gujarat Darshan' newspaper. Ultimately, the tender of the successful bidder was accepted and the unit was sold and sale deed was executed on 8.3.2007 in favour of M/s. Jay Industries, Ankleshwar. This action of selling the unit of the applicant is stated to be in breach of the interim order of status quo granted by this Court.
4. We have heard part-in-person. He has also tendered written arguments and one handwritten affidavit. He has submitted that the action of selling his unit was not only in clear breach of the interim order of status quo granted by this Court but was clear and intentional collusive act of the officers of the Corporation to play fraud with him as also with Court. He has pointed out that the respondents, as also the officers of the Corporation, were very much aware about the interim order of status quo granted by this Court and still with clear intention to defy the interim order of this Court, his unit was openly offered for sale and ultimately sold away by making a show that the applicant was given enough opportunity and was made aware about putting his unit to sale. He has argued that the respondents and the other officers cannot pretend of any communication gap or misinterpretation of the interim order because not only there is a separate legal cell with the Corporation, but considering day-to-day function of the Corporation to deal with immovable properties in connection with grant of loan or other financial facilities to the unit holder, it is nothing but mere excuse. The applicant has tried to demonstrate before the Court that though as per the direction of the learned Single Judge, his case was required to be considered for One Time Settlement by deciding his representation, still he was never allowed to see even the face of General Manager and his all efforts were in vain to resolve his claim for One Time Settlement and he projected that it was intentional and calculated act on the part of the respondents to keep him away from considering his case for One Time Settlement and to see that his unit was any how sold away under the guise of not agreeing for One Time Settlement and/or not repaying the outstanding amount. He has stated that he was never sent any communication and the respondents have in fact, fabricated the story of sending communication to him before putting his unit to auction. He categorically stated that he never received any communication of asking him to remain present before the Tender Committee and the whole proceedings of selling his unit through auction was completed in his absence. Such was a deliberate act to flout the interim order of status quo granted by this Court and therefore, no leniency should be shown to respondents and other officers who have indulged into such defying act and have no regard or respect to the Court's order. He lastly submitted that this Court should take stern action against the respondents and other officers of the Corporation under the Contempt of Courts Act and punish the respondents and the officers of the Corporation to set an example.
5. As against the arguments, learned senior counsel Shri M.J. Thakor appearing with Shri Mitul K. Shelat for respondent Nos.1 to 4 submitted that this applicant had no intention from the beginning to repay the loan advanced to him. He has been playing very clever tactics of delay to repay the legitimate amount of loan advanced to him by the Corporation. He submitted that the applicant had misused the leniency shown to him not only by the Corporation but also by the Court. He has also pointed out that when the applicant filed the Special Civil Application in 1986, it was because of his fault of not showing any bonafide intention to repay the loan amount, the Corporation was required to exercise the powers of taking possession of the unit and subsequently, the applicant had filed the civil suit before the Civil Court in 1992 and after obtaining the order of status quo, the applicant did not show any interest of settling the dispute of the Corporation and only intention on the part of the applicant was to delay repayment of the loan amount. Learned senior counsel further pointed out that after the learned Single Judge of this Court granted the interim order of status quo and by subsequent order directed the Corporation to consider the request/ representation of the applicant for One Time Settlement, the officers of the Corporation made all good efforts to see that the applicant come forward with positive attitude and resolve the dispute under One Time Settlement. However, as usual, the applicant did not co-operate and it was not possible to resolve the dispute with the applicant. He submitted that after order dated 7.2.2005, when the settlement could not be arrived under One Time Settlement, the applicant, as usual, made allegations against the officers of the Corporation and therefore, the Joint Manager, Ankleshwar Branch of the Corporation had written to the Manager (Legal Recovery) on 2.3.2006 to draw the attention of the Hon'ble Court for necessary orders for the purpose of sale of the Unit of the applicant. This communication is found at page No.92. Shri Thakor has drawn our attention to another communication dated 9.3.2006 (page No.94) addressed by the Joint Manager (Legal Recovery) to the Joint Manager, Gujarat State Financial Corporation, Ankleshwar, stating that by order dated 7.2.2005 passed by the Hon'ble Court, the Corporation was to decide the request of the applicant. Copy of the order was already sent and the matter was decided by the Court and therefore, no further representation was required to be made to the High Court. The matter was to be decided by the Regional Office and therefore, no action was required by the Joint Manager, Gujarat State Financial Corporation, Ankleshwar. Copy of the order of the High Court was also enclosed. Shri Thakor further submitted that these two officers, who are not the respondents, appeared to be carrying impression by reading order dated 7.2.2005 that, as per the said order, representation/ request of the applicant was to be considered and since the matter was already decided by the Court, it was required not to make any representation before the High Court and therefore, no action was required at the hands of the Joint Manager, Gujarat State Financial Corporation, Ankleshwar. Shri Thakor has further submitted that act of putting the unit to sale on the basis of this understanding of the above-said two officers even if is to be seen as in breach of the interim order of status quo granted by the learned Single Judge, then also, the respondents were nowhere in picture in committing breach of the status quo order granted by this Court. The above-said two officers, who were responsible for taking further action of sale of the unit of the applicant, have not been arraigned in the application and the applicant has not deliberately joined these two officers. Shri Thakor has taken us to the advertisement and communication dated 12.7.2006, addressed to the applicant informing the applicant that public notice was issued in daily newspaper for sale of the unit of the applicant and tender committee meeting was fixed on 25.7.2006 and if the applicant was still interested to run his unit, the applicant should deposit the outstanding dues of the Corporation four days in advance through draft or cash, then the request of the applicant would be considered. Shri Thakor has stated that though the applicant claimed not to have received this communication but looking to endorsement of the Postal Department, it clearly appears that the applicant was deliberately evading the service of the communication, though the Postal Department had informed the applicant at his home to collect postal article within 7 days. Shri Thakor has further taken us to the communication dated 4.8.2006, whereby the applicant was informed about the acceptance of the bid of one of the bidders and was given an option to pay up the amount and get his unit released at the same price and conditions which were finalized in the auction. The Postal Department sent back the said communication with endorsement that the applicant was informed at his home but did not come to take delivery of the postal article. He has then drawn our attention to communication dated 1.9.2006 written to the successful bidder by respondent No.1 and ultimately, the sale was entered in favour of the successful bidder.
6. Learned senior counsel Shri Thakor has also taken us through the affidavits filed by respondents. Respondent No.1 is Managing Director of the Corporation, who has stated that when the property was auctioned in 2006 and sale deed was executed on 8.3.2007, he was neither Managing Director of Gujarat State Financial Corporation nor was having charge of Managing Director of Gujarat State Financial Corporation. He has stated that he was not involved in any such act in breach of the order passed by this Court. He stated that on the basis of the advice of the Legal Recovery, Regional Office has acted to proceeded further with the sale of the property and there was no willful disobedience of the order of the Court. Respondent No.2 Dr. Jagdish Padmakant Joshi has stated in his reply affidavit that he had resigned from the Gujarat State Financial Corporation in January 2006 and was not in service of the Gujarat State Financial Corporation at the time when the contempt, as alleged, was committed. He has stated that the applicant was personally heard by him on the request for One Time Settlement scheme and thereafter, the Corporation has not extended one time settlement to the applicant. He stated that the settlement was not accepted by the applicant during his tenure but thereafter, he had left the service of the Corporation in January 2006 and therefore, he is not in a position to respond to any other allegations made in the application. Respondent No.3 Shri Sanat J. Shah has stated in his reply affidavit that he was working as Regional Manager at Rajkot office of Gujarat State Financial Corporation from September 2000 to 5.1.2008. He was then posted as General Manager from 30.6.2008 to 31.1.2011 at Head Office of Gujarat State Financial Corporation at Gandhinagar. He further stated that he has retired and has been staying with his family at Baroda. He has also stated that he was not the member of respective Regional Tender Committee of Gujarat State Financial Corporation and he was not involved in sale of the asset in question and he has been wrongly joined as party in the application. Last affidavit is filed by on behalf of of respondent No.4 by one Lalit Naranbhai Parmar. He has given in detail the particulars right from 27.4.1979 as regards sanctioning of the loan to the applicant till the sale of the Unit in auction on 8.3.2007. He has stated in his affidavit that the applicant was informed on 16.3.2006 about the decision of the Corporation to proceed further with the sale of the assets of the Unit since the applicant had not acted upon the One Time Settlement offer made by the Corporation. He has also stated that the applicant was then informed about the tender committee meeting, sale of the unit and execution of the sale deed dated 8.3.2007. He has stated that the Corporation had acted bonafidely and it appears that the order granting status quo was not placed on file of the Joint Manager (Legal and Recovery) and on non-acceptance of the One Time Settlement by the applicant, Regional Office was informed to proceed with the sale of the asset. He stated that under such bonafide belief, the assets were sold. He has ultimately stated that there was no willful breach of the order passed by the Court.
7. On the basis of the above-said replies of the respondents, learned senior advocate Shri Thakor urged that the respondents cannot be said to have acted in defiance of the order passed by this Court. At the best, two officers, viz. Joint Manager (Legal and Recovery) and Joint Manager, Gujarat State Financial Corporation, Ankleshwar can be said to have acted either because of misinterpretation of the Court's last order or because of the bonafide belief that the Court proceedings were already over and there was no requirement to bring to the notice of the Court about the further action of the Corporation to sell the property on non-acceptance of One Time Settlement Scheme by the applicant. He has stated that since those officers are not joined by the applicant, the say of the applicant that there is deliberate act of breach of the interim order passed by this Court cannot be believed and decided.
8. Shri Thakor lastly submitted that it is not possible to believe that the applicant was not in know of the sale of the unit in 2006-2007. The applicant appears to have deliberately avoided the communication. Not only this but he also deliberately stated to be not aware about publication of the advertisement in the newspaper for sale of his unit in auction. He stated that the applicant was having knowledge about the sale of the unit in 2006-2007 and having chosen not to make any complaint about breach of the order of status, clearly go to establish that the applicant has filed the present application not with bonafide intention. Shri Thakor has submitted that the action committing breach of the interim order has taken place in 2006-2007 and since this application is filed under the Contempt of Courts Act after unreasonable long period of more than three years, this Court may not entertain this petition and may not initiate any action under the Contempt of Courts Act as the applicant himself is responsible for delay and laches and he himself remained indolence and therefore, no action be initiated at the instance of such applicant. He submitted that even otherwise, the respondents have given satisfactory explanation as per which, they are not at all responsible for committing breach of the interim order and therefore, this application against the respondents is required to be rejected.
9. Having heard the party-in-person as also learned senior counsel Shri Thakor with Shri Shelat for the respondents, we are of the opinion that no action under the Contempt of Courts Act is required to be initiated against the respondents. It clearly appears to us that the respondents have not committed any breach of the order passed by this Court. Respondent No.1 has explained that he was not Managing Director at the relevant time and he has not taken any action in breach of the interim order passed by this Court. Respondent No.2 has also well explained that he had already resigned from the Corporation in January 2006 before the action of selling the property had finally taken place. He had stated that during his tenure, the applicant was heard for One Time Settlement, but the applicant did not accept, and thereafter, he had no role to play because he had already resigned in 2006. Similarly, respondent No.3 has also explained that he was working as Regional Manager at Rajkot office between 2000 to 5.1.2008 and thereafter, he was transferred to Gandhinagar and then retired. He stated that he was not member of the respective Regional Tender Committee nor was in any way involved in sale of the unit of the applicant and there are no specific allegations against him in the application and he has been wrongly joined in the application. Respondent No.4 has given all details right from 1979 to the date of sale of the property and he has explained that it was because of the two officers, i.e. one from Legal and Recovery and another one Joint Manager, Ankleshwar Branch, that some misunderstanding had developed and under the bonafide belief that since the settlement had failed, the Court case was over and there was nothing to be brought to notice of the Court and therefore, in a bonafide belief after putting to the notice of the applicant, sale had taken place and the applicant having not complained at the relevant time, it cannot be said that any willful breach has been committed by any of the officers.
10. We are of the opinion that the explanations put forth by all the respondents in their affidavits go to show that the respondents have not committed any breach of the order passed by this Court. We are also of the opinion that this application is filed at a very belated stage. The applicant has remained silent for a period of more than three years in approaching the Court for initiating the contempt proceedings for the reasons best known to him. During the course of hearing, we had repeatedly asked the applicant whether the applicant would like to still join those two officers who are alleged to have acted in defiance of the interim order passed by this Court, the applicant has chosen not to join those two officers and has stuck to his stand to proceed against the respondents. We are of the opinion that no action under the Contempt of Courts Act can be initiated against the present respondents. We are otherwise also of the opinion that the application is also barred by principle of delay and laches and therefore also, we would not like to entertain such application to take action under the Contempt of Courts Act against the respondents and to punish them especially when we have already been satisfied that the respondents have not committed any breach of the order passed by this Court.
11. Under the circumstances, this application is required to be dismissed. We accordingly dismiss this contempt application. Notice is discharged. Interim relief, if any, stands vacated forthwith.
Sd/-
(AKIL KURESHI, J.) Sd/-
(C.L.
SONI, J.) omkar Top