IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P. SANDESH CCC NO.341 OF 2018 (CIVIL) BETWEEN:
SRI. RAMACHANDRA SHETTY A SON OF ANJANAPPA SHETTY AGED ABOUT 72 YEARS No.17, 4TH MAIN ROAD N.R. COLONY BENGALURU-560 028.
REPRESENTED BY GPA HOLDER B. SHANKAR SON OF B BRAHMANANDA AGED ABOUT 35 YEARS NO.8, CROSS, SUBBANNAPALYA BANASWADI 80 FEET ROAD BENGALURU-560 043. ... COMPLAINANT (BY SRI UMA SHANKAR M.N., ADVOCATE) AND:
1. SRI. A.T. BABU RAO SON OF LATE SRI. A. THUKARAMA RAO AGED ABOUT 61 YEARS 2. SRI. A.T. SHANKARA RAO SON OF LATE SRI. A. THUKARAMA RAO AGED ABOUT 58 YEARS BOTH ARE RESIDING AT NO.6/6, H.B. SAMAJA ROAD CROSS BASAVANAGUDI BENGALURU-560 004.
3. SRI. M. VENKATARAM SON OF K. MUNIYAPPA AGED ABOUT 46 YEARS REPRESENTED BY ITS MANAGING PARTNER MESSRS ANU BUILDERS AND DEVELOPERS A PARTNERSHIP FIRM HAVING ITS OFFICE AT No.119, 4TH CROSS MALLAPPA LAYOUT KALYANANAGAR BENGALURU-560 043.
4. SRI. P. RAVINDRA KUMAR AGED ABOUT 45 YEARS REPRESENTED BY ITS CHAIRMAN AND CEO MESSRS VASATHI HOUSING AND INFRA PRIVATE LIMITED HAVING ITS REGISTERD OFFICE AT CENTRAL NEAR CAL BUNGALOW AMEERPET HYDERABAD-500 082. ... ACCUSED (BY SRI M.S. VARADARAJAN, ADVOCATE FOR ACCUSED NOS.1 AND 2 SRI. V. SANJAY KRISHNA, ADVOCATE FOR ACCUSED NO.3 SRI. L.S. CHIKKANAGOUDAR, ADVOCATE FOR ACCUSED NO.4) THIS CONTEMPT PETITION IS FILED UNDER SECTIONS 11 AND 12 OF THE CONTEMPT OF COURTS ACT, 1971 READ WITH ARTICLE 215 OF THE CONSTITUTION OF INDIA PRAYING TO INITIATE CONTEMPT PROCEEDINGS AGAINST THE ACCUSED FOR WILLFUL AND DELIBERATE DISOBEDIENCE OF THE ORDER PASSED IN M.F.A. No.6054 OF 2017 DATED 06.12.2017.
THIS CONTEMPT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.09.2019, COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:
ORDER This contempt petition is filed under Sections 11 and 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India praying this Court to initiate contempt proceedings against the accused for their willful and deliberate disobedience of the order passed by this Court in Miscellaneous First Appeal No.6054 of 2017 dated 06.12.2017 and punish the accused in accordance with law and award the cost of the proceedings.
2. Brief facts of the case are as follows:
It is the case of the complainant that, he had filed the suit in O.S.No.25522 of 2014 before the City Civil Court, Bengaluru, Mayo Hall Unit for the relief of specific performance. In the said suit, he had filed an Interlocutory Application under Order 39, Rule 1 and 2 of Code of Civil Procedure seeking for an order of temporary injunction restraining the defendants from alienating the suit schedule property till the disposal of the suit. The said application was dismissed vide order dated 23.06.2017. Being aggrieved by the said order, the complainant has filed Miscellaneous First Appeal No.6054 of 2017. This Court vide order dated 06.12.2017 disposed of the appeal directing the defendants therein that whenever they sell a flat to the intending purchaser, they should make it very clear that sale is subject to the result of the suit.
The accused persons, while selling the flat to Smt. Archana Singhode and Smt. Vinith Dhatta vide sale deed dated 04.01.2018, did not make any recital regarding pendency of the proceedings in O.S.No.25522 of 2014 which amounts to contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971 punishable under Sections 11 and 12 of the Act since, the very execution of sale deed is without incorporating the direction given by this Court.
3. In pursuance of this contempt petition, this Court has issued notices to all the accused persons and all of them are represented through their respective counsels.
4. The respondent Nos.1 and 2/accused Nos.1 and 2 have filed their statement of objections contending that they have executed a power of attorney dated 06.08.2010 in favour of M/s. Vasathi Housing Limited. However, M/s. Vasathi Housing Limited did not comply with the terms of the related joint development agreement entered into between the said company on the one hand and respondent Nos.1 and 2 on the other, respondent Nos.1 and 2 revoked the power of attorney dated 06.08.2010 by the deed of revocation dated 24.12.2011. In view of revocation of power of attorney, M/s. Vasathi Housing Limited, ought not to have executed the sale deed dated 04.01.2018 in the name of respondent Nos.1 and 2. Therefore, the sale deed in question cannot by any stretch of imagination be construed as one executed by respondent Nos.1 and 2. In fact, the said sale deed does not even bind the respondent Nos.1 and 2. Hence, it cannot be said that the respondent Nos.1 and 2 have not violated the order passed by this Court in Miscellaneous First Appeal No.6054 of 2017.
5. The respondent No.3/accused No.3, in his statement of objection has contended that the complainant has misunderstood the order passed by this Court in Miscellaneous First Appeal No.6054 of 2017. This Court, while deciding the said appeal concluded that there is no merit in the appeal and further held that the interest of the complainant could be protected by directing the defendants/respondents therein that whenever they sell a flat to a intending purchaser, they should make it very clear that such sale is subject to the result of the specific performance suit filed by the complainant in O.S.No.25522 of 2014. It is submitted that this Court neither directed while stipulating the condition that the final transfer of property under sale will be considered valid only subject to the result of the suit in original suit and the same has to be mentioned by the respondents in the sale deed nor imposed any bar on the sale of such property. The only condition imposed by this Court was that the respondents should make it clear to the intending purchasers that the sale is subject to the result of the suit, without prescribing any specific mode by which such intimation has to be conveyed.
6. It is further submitted that the respondent No.3 is not the one, who has executed the sale deed. However, the most substantial condition of conveying to the intending purchaser that the sale is subject to the result of the specific performance suit has been met in the present case though the said fact is not specifically mentioned in the sale deed. Hence, prayed the Court to dismiss the contempt proceedings.
7. The respondent No.4/Accused No.4 in his statement of objections has contended that the allegations of the complainant made against the respondents are neither true nor correct and the same are misconceived and as such, the contempt proceedings may be dropped. He also submits that neither himself nor none of the respondents have violated the order of this Court dated 06.12.2017 passed in Miscellaneous First Appeal No.6054 of 2017 and they have carried out the direction issued by this Court and there is no violation much less wilful and deliberate violation of the direction issued. He further submits that this Court while dismissing the appeal relied upon the decision of the Hon’ble Apex Court in the case of M. GURUDAS & ORS –VS- RASARAJAN & ORS reported in 2006 SAR (CIVIL) 823 and made it clear that the sale of flat is subject to the result of the pending suit and in this regard, the joint purchasers have jointly executed an indemnity bond dated 31.03.2018 in favosur of M/s. Vasathi Housing Limited, who is being represented by respondent No.4. Besides the said joint purchasers issuing a letter of acknowledgement dated 31.03.2018 acknowledging that there is civil suit pending, they have thanked the respondent No.4 for having assured them that the respondents are defending them in the said suit at the builders’ cost and that the said joint purchasers will also be impleaded in the said suit, in which event, the joint purchaser will co-operate with the builder. Hence, it is submitted that the respondents have not violated order of this Court.
8. The respondent No.4 has also filed additional statement of objection contending that accused Nos.1 to 3 are blaming him and respondent Nos.1 and 2 contend that they have revoked the power of attorney but the same is challenged. The learned Arbitrator by the award dated 12.08.2013 have been pleased to allow the claim petition filed by respondent No.4 on the basis of the terms contended in compromise petition as part and parcel of the award including the reliefs claimed by respondent No.4 with a further direction to respondent Nos.1 and 2 to deliver to the custody of respondent No.4 the registered deed of revocation of power of attorney dated 24.12.2011 within 15 days from the date of receipt of the copy of the award for the purpose of cancellation of the same with the Sub-Registrar.
9. Having considered the contents of the complaint as well as the statement of objections filed by the respective respondents/accused, this Court proceeded to frame the charges against the accused persons. Therefore, independent charges have been framed against the accused persons, except accused No.2 since, accused No.2 was unable to appear before the Court. Hence, case against accused No.2 was split up and ordered to proceed only against accused Nos.1, 3 and 4.
10. The complainant, in order to substantiate his case, examined himself as C.W.1 and got marked Exs.P1 to P5. The accused Nos.1, 3 and 4 were examined before the Court as D.Ws.1 to 3 and got marked the documents Exs.D1 to D7. The 313 statement of the accused persons were also recorded.
11. We have heard the learned counsel for the complainant and also the learned counsel for the accused and after having heard the arguments of respective counsels, the points that arise for our consideration are:
(i) Whether the accused Nos.1, 3 and 4 have wilfully disobeyed the order of this Court passed in Miscellaneous First Appeal No.6054 of 2017 vide order dated 06.12.2017 and thereby committed the offence punishable under Section 12 of the Contempt of Courts Act, 1971?
(ii) What order?
Point Nos.(i) and (ii) 12. Having considered the contents of the complaint, the statement of objections of the accused persons and also the rival contentions of learned counsel for both the parties, this Court has to examine whether the accused persons have committed wilful disobedience of the order of this Court in not complying with the directions issued by this Court in Miscellaneous First Appeal No.6054 of 2017. In order to arrive at a conclusion, it is necessary to consider both oral and documentary evidence available on record.
13. Firstly, we would like to take up the evidence available on record. The complainant, who has been examined as C.W.1 in his evidence reiterates that he had filed a suit for specific performance in O.S.No.25522 of 2014. He had also filed an application under Order 39, Rule 1 and 2 of Code of Civil Procedure seeking for an order of injunction restraining the defendants/accused not to alienate the suit schedule property. The said interlocutory application was dismissed. Hence, he approached this Court by filing Miscellaneous First Appeal No.6054 of 2017. This Court, while disposing of the appeal, a specific direction was given that in all sales hereinafter, the defendants shall make a reference in the sale deeds, if any with regard to the pendency of the said suit. He relied upon the order of this Court dated 06.12.2017 passed in the appeal as per Ex.P1. It is his evidence that on 04.01.2018, the accused Nos.1 to 4 executed a sale deed in favour of one Smt. Archana Singhode which is marked as Ex.P2. In page 9 at clause-3(b) of the sale deed vide Ex.P2, it is narrated that the apartment is free from all types of encumbrances, mortgages, charges, lien, lispendens etc., and did not mention the direction issued by this Court in the sale deed. He also reiterates that yet another sale deed was executed by the accused on 19.01.2018 in favour of one Thirumalaiappan, the said sale deed is marked as Ex.P3. The complainant also got marked the appeal memorandum as Ex.P4 and so also the power of attorney issued by the plaintiff in his favour as Ex.P5.
14. This witness was subjected to cross examination by learned counsel for the accused No.4. In the cross examination, it is suggested that there is no order to the effect that whenever a flat is sold, the defendants should make a mention of the suit pending before the Mayo Hall and the same was denied and states that what is narrated is as stated in para 8 of the said order. He does not know whether the accused No.4 wrote a letter dated 03.01.2018 to all agreement holders and purchasers that the sale is subject to the result of the pending suit. He also does not know that an indemnity bond has been executed by accused No.4 in favour of the purchasers particularly, Smt. Archana Singhode and Smt. Vineet Dhatta and also not aware of communication between them. It is suggested that since the plaintiff did not get an order of injunction from the Trial Court or from the High Court, the complainant has foisted this false case and the same was denied. It is suggested that accused No.4 has not violated the order of this Court and the same was denied.
15. The learned counsel appearing for the accused No.1 also cross-examined the witness and got elicited that, in Ex.P2 and P3, the signature of accused No.1 is not found. It is elicited that, he came to know that the sale deeds have been executed based on the power of attorney executed in his favour by accused No.1. He is not aware whether the accused No.1 has cancelled the power of attorney executed in favour of accused No.4 and he is not aware that accused No.4 had suppressed the sale deeds Exs.P2 and P3 from accused No.1 while executing them. It is suggested that accused No.1 has not committed any contempt and the same was denied.
16. The learned counsel appearing for the accused No.3 also cross examined and got elicited that except Ex.P5, there is no other power of attorney executed by Sri Ramachandra Shetty in his favour between 05.03.2014 and 20.07.2019. It is not correct to state that the said power of attorney was executed to initiate the present contempt petition. It is elicited that he did not make any effort to find out as to whether the purchasers were aware of the order passed by this Court in the appeal. It is elicited that he does not know whether accused No.3 would receive any beneficial interest out of the sale deeds vide Exs.P2 and P3. He does not know whether there was any share allocation agreement between all the accused as well as the parties to the sale deeds. It is elicited that the extent of property developed by accused No.4 is far greater than the property as mentioned in Exs.P2 and P3.
17. On the other hand, the accused No.1 examined himself as D.W.1. In his evidence he reiterates that while dismissing the appeal, it was observed in the said order that whenever the flat is sold to any purchaser, they should make it clear that the sale is subject to the result of the original suit. It his evidence that he has not sold any flat to anyone after the order dated 06.12.2017 and he has also not signed Exs.P2 and P3. He also reiterates that he had executed a registered power of attorney in favour of accused No.4, which included the right to sell the flats etc. The said power of attorney was cancelled by him on 24.12.2011 and got marked the same as Ex.D1. The flats in terms of Exs.P2 and P3 have fallen to the share of the builder namely, accused No.4. The original allocation agreement is marked as Ex.D2.
18. He was subjected to cross examination by learned counsel for the complainant and got elicited that he did not produce the cancellation document vide Ex.D1 either in the original suit or in the appeal and the said exhibit is being produced for the first time in the contempt petition. He admits that the accused No.4 had challenged the revocation of the power of attorney before the arbitrator. It is elicited that he himself and accused No.4 have entered into a compromise in the said arbitration proceedings. In the said arbitration proceedings, in the compromise petition, he has stated that the cancellation of the power of attorney namely Ex.D1 has been cancelled. It is further elicited that he has not told the accused No.4 not to sell any flat to anybody based on the power of attorney. But he claims that he has intimated to accused No.4 about the cancellation of the power of attorney through R.P.A.D. But he does not have the acknowledgement received from accused No.4, and also the receipt for having sent the same to the accused No.4. It is suggested that he did not send any communication to accused No.4 and also did not intimate accused No.4 not to sell any flat since, there was no necessity to do so. But he claims that having come to know about the sales effected by accused No.4, he shall hereafter take appropriate action against him. It is suggested that, he has deliberately not taken any action against accused No.4 and the same was denied. He further admits that in the present proceedings, in the counter filed by him, he has mentioned about the cancellation of the revocation of the power of attorney for the first time. It is suggested that accused No.4 had intimated to him before selling the flats and the same was denied.
19. The learned counsel for the accused also re-examined the witness and got marked the document Ex.D3, the copy of the legal notice sent by his counsel to the accused No.4 intimating the revocation of the power of attorney. In the further cross-examination, it is suggested that Ex.D3 is concocted. The counsel appearing for the accused No.4 in the cross examination confronted Ex.D4 i.e., award passed in the arbitration proceedings. He is not aware of as to whether consequent upon the compromise petition, and the award in the arbitration proceedings, the original power of attorney would stand revived.
20. D.W.2, who is accused No.3 in his evidence got marked the joint development agreement as Ex.D5. The corresponding photocopy of general power of attorney is marked as Ex.D6. He claims that he is not the owner of the property mentioned in Exs.P2 and P3 and he is not signatory to Exs.P2 and P3.
21. In the cross examination, he admits his name finds a place in Exs.P2 and P3. He admits that in paragraph No.4 of his counter, he has stated that even though the High Court has given certain directions, the same does not indicate as to how and in what manner, the directions had to be exactly complied with. It is further elicited that, he has stated in paragraph No.6 of the counter that he has met with the conditions imposed by the High Court and the averments made in paragraph No.7 of the counter is true and correct. He further admits that counter filed by him is as a result of the instructions given by him to his counsel. He states that after coming to know of the present proceedings being initiated against him, he questioned accused No.4 as to how such sale deeds could be executed. The witness also volunteers that he told accused No.4 that he has committed wrong acts and that he is unnecessarily being dragged to the Court.
22. The counsel appearing for the accused No.4 in the cross examination elicited that he has not cancelled the general power of attorney executed by him in favour of accused No.4. He also admits that he is a party in the original suit and in the miscellaneous first appeal. He has not sent any written communication to accused No.4 about the violation of the Court order, but he claims that he communicated orally. It is suggested that he has not spoken to accused No.4 and the same was denied.
23. The other witness is D.W.3, who is accused No.4 i.e., the Chairman and C.E.O of M/s. Vasathi Housing and Infra Private Limited. He states he has initiated arbitration proceedings against accused Nos.1 and 2 with regard to the revocation of power of attorney. He admits that he has executed sale deed in terms of Ex.P2. He has not mentioned the directions issued in the appeal in the sale deed Ex.P2. But he claims that the order of the High Court does not indicate that the said clause should be part and parcel of the sale deed. In terms of the directions, he has intimated the said fact to the intending purchasers. The copy of the letters sent to all the agreement holders and purchasers is marked as Ex.D7. It is his evidence that, he has deliberately not mentioned the said clause in the sale deed due to the fact that, if the said clause is mentioned, the bankers will not grant any loan to the purchasers. The purchasers also requested him not to inculcate the said clause in the sale deed. The said clause would be detrimental to them in the event of they contemplating a sale to some other intending purchasers.
24. He was subjected to cross examination by the learned counsel for the complainant and suggestion was made that he has concocted the document Ex.D7 for the purpose of this case after initiating the proceedings for contempt and the same was denied.
25. The learned counsel appearing for the complainant in his argument brought to our notice the order passed by this Court in the appeal in terms of Ex.P1, the sale deed in terms of Ex.P2 and also the fact that the direction of this Court was not incorporated in the sale deed executed by the accused. Hence, they have committed contempt of Court. It is also contended that accused No.1 suppressed the arbitration proceedings and that the power of attorney given in favour of accused No.1 was revoked, but failed to mention about the subsequent development of the compromise entered between the accused Nos.1 and 4 and cancellation of revocation of the power of attorney.
26. The contention of the accused No.3 is that he has not signed the sale deed. But he admits that on his behalf, sale deed was executed, and also admits the contention taken in the statement of objections. The counsel appearing for the accused No.3 in his argument vehemently contended that the sale deed executed is not in respect of his share and Ex.P2 has to be read along with the joint development agreement and power of attorney and there was no wilful disobedience.
27. The learned counsel for accused No.1 in his argument would contend that Ex.D4, the award of arbitration proceedings did not cancel the earlier revocation of power of attorney in accordance with law and the same holds good. The accused No.4 executed sale deed based on the power of attorney which has been cancelled.
28. The learned counsel for accused No.1 in support of his contention relied upon the judgment reported in 1998 SCC ONLINE KAR 735 in the case of MARIYAPPA –VS- V.R. RAMAKRISHNA RAO AND OTHERS.
The counsel referring this judgment would contend that the general power of attorney holder did not apprise them of the passing of the interim stay. The sale deed was also admittedly executed by the power of attorney holder on behalf of the prospective purchasers apparently without their knowledge, as none of them is shown to be a witness of the said deed.
29. In the case on hand also, the power of attorney holder has executed the sale deed, in spite of cancellation of the power of attorney and hence, there is no wilful disobedience.
30. The counsel also relied upon the judgment reported in AIR 2007 KARNATAKA 177 in the case of H. GOVINDARAJU –VS- SHANKARALINGE GOWDA AND ORS.
The counsel relying upon this judgment would contend that when there are parallel remedy, by invoking jurisdiction under Civil Procedure Code, invoking the provisions of Contempt Act is not available to the complainant.
31. The counsel also would rely upon the judgment reported in AIR 2002 SUPREME COURT 1405 in the case of ANIL RATAN SARKAR AND OTHERS –VS- HIRAK GHOSH AND OTHERS wherein it is observed that contempt is a powerful weapon in the hands of the Courts and the same has to be used with utmost care and caution that too, sparingly.
32. By referring to these judgments, the counsel would contend that there is no wilful disobedience and hence, this Court has to dismiss the contempt proceedings.
33. The counsel appearing for the accused No.4 would contend that the charge framed against the accused is not correct and there was no wilful disobedience and the accused has explained in his counter statement as well as in the evidence the circumstances under which the sale deeds have been executed. In order to protect the interest of the prospective purchasers and also at the request of the prospective purchasers, the direction of this Court in the appeal was not mentioned in the sale deed.
The other documents i.e., indemnity bond as well as the separate letters corresponded between the accused No.4 and the prospective purchasers discloses about the directions. Hence, he contends that the contempt petition has to be dismissed.
34. The learned counsel appearing for the respondent No.4 in support of his contention has relied upon the judgment reported in AIR 2004 SUPREME COURT 4419 in the case of STATE OF BIHAR AND OTHERS –VS-
RAJENDRA SINGH AND ANOTHER and brought to our notice that the Court cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings.
35. Having considered the contentions of the learned counsel for the complainant and also the learned counsel for the respondents/accused, this Court has to appreciate whether the act of the accused persons would amount to contempt under Sections 11 and 12 of the Contempt of Courts Act, 1971. Before appreciating the oral and documentary evidence, we would like to make a mention about the direction issued by the Court in Miscellaneous First Appeal No.6054 of 2017. The Court below while disposing the main appeal itself made it clear that the interest of the plaintiff can be protected by directing the defendants to make it clear that whenever they sell a flat to the intending purchasers, they should make it clear that sale is subject to the result of the suit. Having considered the direction, it is clear that whenever defendants sell a flat to the intending purchaser, they should make it clear that the sale is subject to the result of the suit. The contention of the accused is that the mode in which it has to be conveyed to the intending purchaser is not specific.
36. It is also important to note that the order is to the effect that when the defendants intend to sell a flat to the intending purchaser, they should make it very clear that sale is subject to the result of the suit means, it should be mentioned in the sale deed incorporating the said direction that the sale is subject to the result of the suit. Therefore, the contention that the mode has not been mentioned in the order cannot be accepted. When such a clear direction has been given in the order, the accused persons cannot interpret the same in a different context that the mode has not been stated. The respondents did not dispute the very fact that sale deed has been executed in terms of Ex.P2. The charge is also very clear that in violation of the direction issued in Miscellaneous First Appeal No.6054 of 2017, while selling the flat to Smt. Archana Singode and Smt. Vineeta Datta vide sale deed dated 04.01.2018, the accused did not make a mention regarding pendency of the proceedings and the same is subject to the result of the suit. On perusal of the sale deed which is marked as Ex.P2 and also the evidence of the complainant, it is specific that the same has not been incorporated in Page-9 at clause 3(b) of the sale deed . It is mentioned that the apartment is free from all types of encumbrances, mortgages, charges, liens, lispendens etc., and that the schedule property is not the subject matter of any legal, acquisition or requisition proceedings before any Court of law. Hence, it is clear that the accused have suppressed the said fact and violated the order of this Court. However, the counsel appearing for the accused No.4 made an attempt to explain the circumstances stating that the sale deed was executed at the request of the prospective purchasers and if the same is mentioned in the sale deed, they may not get the loan and also they cannot sell the same to the prospective purchasers. Hence, deliberately he did not mention the same in the sale deed.
37. None of the accused persons have disputed the order and it is not their case that the order was not in their knowledge and apart from that, they are also parties to the miscellaneous first appeal and are represented through their counsel. Hence, the same was within their knowledge.
38. Though the accused No.3 would contend that he questioned the very act of accused No.4, however, he did not take any steps against him but, only states that he intends to take steps against him. Further, in spite of contempt proceedings being initiated against him, he did not take any steps against accused No.4. But contends in the objection statement complied the directions. Hence, accused No.3 also cannot contend that there was no wilful disobedience.
39. It is also important to note that accused No.1 takes the defence that the power of attorney executed in favour of accused No.4 was revoked and hence, there was no wilful disobedience and accused No.4 making use of the power of attorney which was revoked executed the sale deed and hence, he is not liable for any contempt proceedings.
40. The counsel appearing for the complainant during the course of cross-examination of D.W.1 elicited that regarding revocation of power of attorney, the same has been questioned before the arbitrator and also elicited that in the arbitration proceedings, the said accused as well as the accused No.4 have filed compromise petition and in term of compromise petition, the revocation of the power of attorney was cancelled and the same has been suppressed by the accused No.1 and only during the course of cross examination, he admits the same. Hence, it is clear that, the power of attorney which he has revoked was cancelled in terms of compromise. But his argument is that the same was not cancelled in accordance with law but, there is an award based on the compromise petition and the same has not been disputed and the said documents are marked as Ex.D4. Hence, in order to escape from the clutches of the present proceedings, he took up the defence and suppressed the cancellation of the revocation of power of attorney and the judgments which have been referred by the counsels representing the accused would not come to the aid of the accused persons and there is a clear violation of the order of the Court in not incorporating the directions of this Court in the sale deed.
41. The accused persons did not dispute the fact that the same was not incorporated but, made certain attempt to explain the circumstances warranted in executing the sale deed in such a manner. Though the other accused persons contend that they are not the signatories to the sale deed but, the fact that they have given the power of attorney in favour of accused No.4 is not disputed and also, it is not their contention that they were not aware of the order and when such being the circumstance, the defence and the counter statement filed by the accused cannot be accepted.
42. Having considered the material on record, there is a clear violation of the order of this Court passed in Miscellaneous First Appeal No.6054 of 2017 vide order dated 06.12.2017 and the very contention that the mode is not mentioned in intimating the same to the prospective purchasers has not been stated in the order cannot be accepted. Hence, the act of the accused falls within the meaning of Section 2(b) of the Contempt of Courts Act, 1971 and there is wilful disobedience of the order of this Court. Section 2(b) of the Contempt of Courts Act, 1971 is clear that, if any wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court, the Court can invoke the contempt jurisdiction.
43. In the present case, this Court in M.F.A.No.6054 of 2017 vide order dated 06.12.2017, a specific direction was given to the defendants that whenever they sell a flat to the intending purchaser, they should make it very clear that the sale is subject to the result of the suit. But on perusal of the sale deed which is marked as Ex.P1, the said direction has not been incorporated. It is pertinent to note that in the sale deed, it is deliberately mentioned that the property is free from encumbrance and the said averments in the sale deed is nothing but wilful disobedience of the order of this Court.
It is further pertinent to note that the accused persons justify the disobedience of the order of the Court contending that, in order to help the prospective purchasers, the said direction has not been incorporated. Hence, it is a fit case to invoke contempt jurisdiction for wilful disobedience of the order of this Court by the accused persons. Therefore, the complainant has proved that the accused Nos.1, 3 and 4 have wilfully disobeyed the order of this Court dated 06.12.2017 passed in Miscellaneous First Appeal No.6054 of 2017. Hence, we answer point No.(i) as ‘affirmative’.
44. In view of the discussions made above, we pass the following:
ORDER (i) The contempt petition is allowed.
(ii) The accused Nos.1, 3 and 4 are convicted for the offence punishable under Section 12 of the Contempt of Courts Act, 1971. The accused Nos.1, 3 and 4 are sentenced to undergo simple imprisonment for a period of one month and also directed to pay a fine of Rs.2,000/- each in the Registry. In default of payment of fine, accused Nos.1, 3 and 4 to undergo further simple imprisonment for a period of one month.
Sd/- Sd/-
JUDGE JUDGE ST