Supreme Court of India
BALWANTBHAI SOMABHAI BHANDARIversusHIRALAL SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
- Citation
- 2023 INSC 805
- Decided
- 6 September 2023
- Disposal
- Dismissed
- Bench
- B PARDIWALA
Holding
A wilful breach of an undertaking given to the court amounts to civil contempt, the undertaking was to the court, the contempt court may void such transactions, third‑party purchasers have no locus to be heard, and the apology was not acceptable.
Summary
The Gujarat High Court recorded an undertaking, made by counsel on behalf of the respondents, that certain property would not be sold until the main petition was decided. Despite this, the appellants executed multiple sale deeds in favour of various purchasers, breaching the undertaking. The High Court held the appellants guilty of civil contempt under the Contempt of Courts Act, 1971, declared the sale deeds void, and imposed fines and imprisonment. On appeal, the Supreme Court examined whether such an undertaking constitutes a contemptuous breach, whether the contempt court can void the transactions, whether the purchasers have standing, and whether an apology can be accepted. The Court affirmed that a wilful breach of an undertaking given to the court amounts to civil contempt, that the undertaking was indeed to the court, that the contempt court may declare the transactions void, that third‑party purchasers have no right to be heard, and that the apology tendered was not sufficient to excuse the contempt. Consequently, all three appeals were dismissed and the High Court's orders were upheld.
Issues considered
- Whether a wilful breach of an undertaking given by counsel on behalf of a client to the court constitutes civil contempt under s.2(b) of the Contempt of Courts Act, 1971.
- Whether the undertaking in the present case can be characterised as an undertaking to the court rather than to the opposite party.
- Whether a contempt court has the power to declare transactions made in contempt as void or non est.
- Whether bona‑fide purchasers of the property have a right to be heard as necessary or proper parties in contempt proceedings.
- Whether an apology tendered by the contemnors should be accepted to mitigate or set aside the contempt order.
Legislation cited
- Contempt of Courts Act, 1971s. 12, s. 19, s. 20, s. 2(b)
- Transfer of Property Act, 1882s. 52
Subjects
civil contemptundertakingwilful disobediencecontempt of courtTransfer of Property Actvoid transactionbona fide purchaserapology in contemptSection 2(b) Contempt ActSection 12 Contempt Act
Judgment
[2023] 11 S.C.R. 1064 : 2023 INSC 805
CASE DETAILS
BALWANTBHAI SOMABHAI BHANDARI
v.
HIRALAL SOMABHAI CONTRACTOR (DECEASED) REP. BY
LRS. & ORS.
(Civil Appeal No. 4955 of 2022)
SEPTEMBER 06, 2023
[J. B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issues for consideration: Whether the wilful breach of an assurance
in the form of an undertaking given by a counsel/ advocate on behalf of his
client to the court would amount to “civil contempt” as defined u/s. 2(b) of
the Contempt of Court Act, 1971; whether the said undertaking could be
said to have been given to the court; whether the contempt court has the
power to declare any contemptuous transaction non est or void; whether
the beneficiaries of a contemptuous transaction have a right to be heard in
the contempt proceedings on the ground that they are necessary or proper
parties as they are bona fide purchasers of the suit property for value without
notice; and whether the apology tendered by the contemnors deserves to
be accepted.
Contempt of Courts Act, 1971 – s. 19 – Statutory appeals under
– Statement made by the counsel appearing for the contemnors before
the High Court in the form of an undertaking upon instructions of the
clients that the property would not be sold till the disposal of the main
petition – However, despite the undertaking, the appellants proceeded
to execute sale deeds in favour of different parties and thereby, wilfully
disobeyed the order passed by the High Court – Contemnors held
guilty of contempt by the High Court and the sale transactions held to
be void – Correctness:
Held: High Court did not commit any error in passing the impugned
judgment and order – Undertaking was given to the High Court and the
breach or disobedience would attract the provisions of the 1971 Act. [Paras
116 and 117]
1064
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1065
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
Contempt of Court Act, 1971 – s. 2(b) – Expression ‘wilful
disobedience’ – Meaning of – Wilful breach of an assurance in the form
of an undertaking given by a counsel/advocate on behalf of his client
to the court, if would amount to ‘civil contempt’ as defined u/s. 2(b):
Held: Expression “wilful” means act or omission which is done
voluntarily or intentionally and with the specific intent to do something
which the law forbids or with the specific intent to fail to do something the
law requires to be done, with bad purpose either to disobey or to disregard
the law – It signifies a deliberate action done with evil intent or with a bad
motive or purpose – Assurance in the form of an undertaking given by a
counsel/advocate on behalf of his client to the court, the wilful breach or
disobedience of the same would amount to ‘civil contempt’ as defined u/s.
2(b) of the 1971 Act . [Paras 56 and 116(i)]
Contempt of Court Act, 1971 – s. 2(b) – Term Undertaking –
Meaning of – Undertaking by the counsel, if undertaking given to the
court:
Held: Every undertaking given by a party to a litigation may not be an
undertaking to the court – There exists a distinction between an undertaking
given to a party to the lis and the undertaking given to a court – Undertaking
given to a court attracts the provisions of the 1971 Act whereas an
undertaking given to a party to the lis by way of an agreement of settlement
or otherwise would not attract the provisions of the 1971 Act – Breach of
an undertaking given to the other party may not constitute the contempt of
court – However, whether a particular undertaking is an undertaking to the
court or to the opposite party depends upon the facts and circumstances of
each case and the language used – On facts, the undertaking could be said
to have been given to the court – Wilful breach of an assurance in the form
of an undertaking given by a counsel/advocate on behalf of his client to
the court would amount to “civil contempt” as defined u/s. 2(b) . [Paras 72,
73, 76-77 and 116(ii)]
Contempt of Court Act, 1971 – Contempt of court – Transfer of
suit property in contempt proceedings – Power of the contempt court
to declare any contemptuous transactions non est or void:
1066 SUPREME COURT REPORTS [2023] 11 S.C.R.
Held: Though the transfer of the suit property pendente lite may not
be termed as void ab initio yet when the court is looking into such transfers
in contempt proceedings the court can definitely declare such transactions
to be void in order to maintain the majesty of law – Apart from punishing
the contemnor, the majesty of law may demand that appropriate directions
be issued by the court either for reversal of the transactions by declaring
the said transactions to be void or proceed to pass appropriate directions
to the concerned authorities to ensure that the contumacious conduct on
the part of the contemnor does not continue to enure to the advantage of
the contemnor or anyone claiming under him – On facts, the High Court
justified in declaring all the sale deeds executed by the contemnors in favour
of the purchasers as non est; and that the sale deeds stand cancelled and set
aside – Transfer of Property Act, 1882 – s. 52. [Paras 88, 89 and 116(iii)]
Contempt of Court Act, 1971 – Contempt of court – Contempt
proceedings – Impleadment of beneficiaries of any contumacious
transaction as necessary parties:
Held: Beneficiaries of any contumacious transaction have no right
or locus to be heard in the contempt proceedings on the ground that they
are bona fide purchasers of the property for value without notice and thus,
are necessary parties – Contempt is between the court and the contemnor
and no third party can involve itself into the same – It was not necessary
for the High Court to implead the purchasers in the contempt proceedings
– Purchasers were quietly watching the proceedings – It is not as if they
were not aware of what was happening however, when things went wrong,
they now cry foul of not being impleaded as parties and heard by the High
Court – Necessary parties. [Paras 97 and 116(iv)]
Contempt of Court Act, 1971 – s. 12 – Punishment for contempt
of court – Apology tendered by the contemnors – Acceptance of:
Held: Apology tendered should not be accepted as a matter of
course and the court is not bound to accept the same – Apology may be
unconditional, unqualified and bona fide, still if the conduct is serious, which
has caused damage to the dignity of the institution, the same should not be
accepted – There ought not to be a tendency by courts, to show compassion
when disobedience of an undertaking or an order is with impunity and
with total consciousness – All throughout the proceedings before the High
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1067
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
Court, the stance of the appellants was that they committed a big mistake
by executing the sale deeds despite having given a clear-cut undertaking to
the court that they would not do so – In such circumstances, the appellants
pleaded before the High Court that their apology may be accepted and
they may be discharged from the proceedings – Though the apology was
tendered before the High Court in the first instance, yet such apology does
not deserve to be accepted and was rightly not accepted by the High Court.
[Paras 100, 113 and 116(v)]
Judicial notice – Matters pertaining to contempt of court:
Held: It is noticed that the courts have shown undue leniency and
magnanimity towards the contemnors – Lenient attitude shown by the courts
actually emboldens unscrupulous litigants to disobey or commit breach of
the order passed by any court or any undertaking given to the court with
impunity – Litigants, proceeded for contempt of court have realised that they
have a very potent weapon in their hands in the form of apology – There
ought not to be a tendency by courts to show compassion when disobedience
of an undertaking or an order is with impunity and with total consciousness.
[Paras 101 and 102]
Contempt of Court Act, 1971 – s. 12 – Punishment for contempt of
court – Apology u/s. 12 – Concept of – Explained. [Paras 99, 111, 112]
Contempt of Court – Contempt Jurisdiction – Exercise of –
Governing principles– Stated. [Paras 40-45]
Contempt of Court – Civil contempt – Commission of – Conditions
to be satisfied – Stated. [Para 43]
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1068 SUPREME COURT REPORTS [2023] 11 S.C.R.
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: [2013] 2 SCR 74; Delhi Development Authority v. Skipper Construction Co.
(P) Ltd. and Another, (1996) 4 SCC 622 : [1996] 2 Suppl. SCR 295; Vidur
Impex and Traders Private Limited and Others v. Tosh Apartments Private
Limited and Others, (2012) 8 SCC 384 : [2012] 10 SCR 307; Jehal Tanti
and Others v. Nageshwar Singh (Dead) THR. LRS., AIR 2013 SC 2235;
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Singh v. Jai Prakash University and Others, (2001) 6 SCC 534 : [2001] 3
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1069
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
SCR 1129; D.N. Taneja v. Bhajan Lal, (1988) 3 SCC 26 : [1988] 3 SCR
888; Tapan Kumar Mukherjee v. Heromoni Mondal and Another, (1991) 1
SCC 397 : [1990] 3 Suppl. SCR 55; Sub-Judge, First Class, Hoshangabad
v. Jawahar Lal Ramchand Parwar AIR 1940 Nagpur 407; Priya Gupta and
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Others, (2013) 11 SCC 404 : [2012] 12 SCR 818; M.Y. Shareef and another
v. Hon’ble Judges of the Nagpur High Court and others, AIR 1955 SC 19
: [1955] SCR 757 – referred to.
M. v. Home Office and Another (1992) Q.B. 270 : (1992) 2 WLR 73
: (1992) 4 All ER 97; Clarke and others v. Chadburn and others (1985) 1
All ER 211 – referred to.
Black's Law Dictionary, Sixth Edition, pg 1599; Black's Law
Dictionary, Fifth Edition – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4955 of 2022.
From the Judgment and Order dated 13.07.2022 of the High Court of
Gujarat at Ahmedabad in Misc. Civil Application No.121 of 2018 in Special
Civil Application No. 16266 of 2013.
With
Civil Appeal Nos. 5041 of 2022 and 4869 of 2023.
Appearances:
Shyam Divan, Kapil Sibal, Mihir Joshi, Mukul Rohatgi, Sr. Advs.,
Ms. Meenakshi Arora, Gaurav Singh, Soumik Ghosal, Shamik Shirishbhai
Sanjanwala, Siddharth Srivastava, Vanshdeep Dalmia, Ms. Devanshi Singh,
Shivam Pundhir, Advs. for the Appellant.
Arijit Prasad, Sr. Adv., Nachiket A. Dave, Pradhuman Gohil, Mrs.
Taruna Singh Gohil, Ms. Ranu Purohit, Alapati Sahithya Krishna, Ms.
Nidhi Mittal, Rushabh N. Kapadia, Vijayanand Tripathi, Advs. for the
Respondents.
1070 SUPREME COURT REPORTS [2023] 11 S.C.R.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J.:
“When we speak of the 'rule of law' as a characteristic of our country,
(we mean) not only that with us no man is above the law, but (what is a
different thing) that here every man, whatever be his rank or condition, is
subject to the ordinary law of the realm and amenable to the jurisdiction
of the ordinary tribunals. Respect for law and its institutions is the
only assurance that can hold a pluralist nation together. Any attempt to
achieve solutions to controversies, however, ideologically and emotionally
surcharged, not on the basis of law and through judicial institutions, but
on the strength of numbers will subvert the fundamental values of our
chosen political organisation. It will demolish public faith in the accepted
constitutional institutions and weaken people's resolve to solve issues by
peaceful means. It will destroy respect for the Rule of Law and the authority
of courts and seek to place individual authority and strength of numbers
above the wisdom of law.”
Mohd. Aslam v. Union of India,
(1994) 6 SCC 442.
1. Since the issues raised in all the captioned appeals are the same; the
parties are also same and the challenge is also to the self-same judgment
passed by the High Court of Gujarat those were taken up for hearing
analogously and are being disposed of by this common judgment and order.
2. There are in all three appeals before us.
3. The Civil Appeal No. 4955 of 2022 and Civil Appeal No. 5041 of
2022 are statutory appeals under Section 19(1) of the Contempt of Courts
Act, 1971 (for short, ‘the Act 1971’) filed by the contemnors who stood
punished by the High Court whereas the Civil Appeal No. 4869 of 2023 is an
appeal filed at the instance of the beneficiaries of contemptuous transactions
with the permission of this Court. In other words, the appellants of Civil
Appeal No. 4869 of 2023 are the purchasers of the suit properties from the
contemnors. The beneficiaries of the contemptuous transactions are also
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1071
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
before this Court as the High Court while holding the appellants of the two
statutory appeals referred to above guilty of contempt for their deliberate
and wilful disobedience of the undertaking given to the court also declared
the sale transactions to be void.
STATUTORY APPEALS UNDER SECTION 19 OF THE
CONTEMPT OF COURTS ACT, 1971
4. The appellants of the two statutory appeals have been held guilty
of contempt by the High Court of Gujarat for their deliberate and wilful
disobedience of the undertaking given to the concerned Court, which came
to be recorded vide order dated 14.10.2015 passed in the Special Civil
Application No. 16266 of 2013. The impugned order passed by the High
Court holding the appellants guilty of contempt dated 13.07.2022 came
to be passed in the Misc. Civil Application No.121 of 2018 filed by the
respondents herein in the Special Civil Application No. 16266 of 2013.
5. The operative part of the impugned order passed by the High Court
reads thus:
“ORDER
(i) We hold that accused Nos. 3.1 to 3.4 and accused No. 4 guilty
of Contempt for their deliberate and wilful disobedience of the
undertaking given to this Court which came to be recorded by
order dated 14.10.2015 passed in Special Civil Application No.
16266 of 2013.
(ii) We impose cost of Rs. 1,00,000/- (Rupees One Lakh only)
on accused Nos.3.1 and 3.2 in lieu of sentencing them to
imprisonment and in addition direct them to pay fine of Rs.
2,000/- (Rupees Two Thousand only) each and the amount of
fine shall be paid within a period of three weeks from today and
in default thereof they shall undergo simple imprisonment for a
period of two (2) months.
(iii) We sentence accused Nos. 3.3, 3.4 and accused No. 4 to undergo
simple imprisonment for a period of two months and pay fine of
Rs. 2,000/- (Rupees Two Thousand only) each and in default to
undergo simple imprisonment for a period of two (2) months.
1072 SUPREME COURT REPORTS [2023] 11 S.C.R.
(iv) It is declared that following sale deeds executed by accused Nos.
3.1 to 3.4 through accused no. 4 as power of attorney holder in
favour of purchaser as non est and it is hereby ordered to be
cancelled, quashed and set aside and respondents are directed to
restore the position which was prevailing prior to the execution
of the aforesaid sale deeds which was prevailing at the time of
the order dated 14.10.2015 passed in Special Civil Application
No. 16266 of 2013.
The said sale deeds are as follows: -
LIST OF SALE DEEDS
Sr. Sale Deed Plot Plot Consideration Name of the
No. Date Area No. purchaser
1 9-11-15 118.48 79 103115/- Jagdish Chug
2 9-11-15 118.48 80 103115/- Rama Rani
3 19-2-16 118.48 119A 8500/- Prakash Kundu
4 19-2-16 118.48 199B 8500/- Prakash Kundu
5 19-2-16 118.48 200 8500/- Prakash Kundu
6 15-3-16 118.48 122B 8500/- Mafatlal Kalidas
(56) HUF
7 15-3-16 118.48 122C 8500/- Mafatlal Kalidas
(55) HUF
8 17-5-17 152 27 8500/- Sudesh Dingra
9 17-5-17 152 27A 8500/- Shilpi Ravi
10 17-5-17 152 28 8500/- Roshan Lal
11 25-7-17 118.48 176 8500/- Sami Kumar
2,82,730/-
3 Sale deeds done /added afterwards
12 30-10-18 19.26 Shop 49000/- Trilokram Mali
No. 7
13. 25-7-17 118.48 175 8500/- Yogesh kumar Patel
Total 3,40,230/-
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1073
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
The Jurisdictional Sub-Registrar/s be informed to make necessary
entries in the records accordingly.
(v) It would be open for the purchasers to recover the amount of sale
consideration from the accused Nos. 3.1 to 3.4 and accused no.
4.
(vi) The present Misc. Civil Application stands allowed with costs
quantified at Rs. 1,00,000/- payable jointly and severally by
accused nos. 3.1 to 3.4 and accused no. 4 to the applicants
towards the cost of the present proceedings.
64. After pronouncement of the above order, Mr. Mihir Joshi,
learned Senior Advocate seeks for stay of operation of this
judgment for a period of four weeks. Having regard to the facts
of above case, we are of the considered view that it would be
just and necessary to stay this order for a period of four weeks
from today. Accordingly, we grant stay of this judgment for a
period of four weeks from today subject to accused Nos. 3.1
to 3.4 and accused No. 4 depositing of fine amount and costs
as ordered hereinabove before this Court within two weeks
from today.”
6.. It all started with an order passed by a learned Single Judge of the
High Court dated 14.10.2015 in the Civil Appeal No. 11412 of 2015 in the
Special Civil Application No. 16266 of 2013 referred to above. The order
dated 14.10.2015 referred to above reads thus:
“It is stated at the Bar by Mr. Sanjanwala learned senior advocate,
on instructions from his clients, that the property qua the subject
matter of this entry and the petition, shall not be sold out till the main
petition is heard and decided, which satisfies the conscious of Mr.
Mihir Thakor learned senior advocate appearing with Mr. Prabhav
Mehta learned advocate and he states that he may not press the Letters
Patent Appeal, on instructions. Hence, this Civil Application stands
disposed of accordingly. It goes without saying that the order was
passed adinvitum/by consent of the learned advocates.”
(Emphasis supplied)
1074 SUPREME COURT REPORTS [2023] 11 S.C.R.
7. Thus, it appears that a statement was made by the learned counsel
appearing for the contemnors before the High Court in the form of an
undertaking and that too upon instructions of the clients that the subject
matter i.e., the property would not be sold till the main petition i.e., the
Special Civil Application No. 16266 of 2013 is finally disposed of.
8. On the strength of the aforesaid order one Letters Patent Appeal
(LPA) filed by the respondents herein against an interim order also came to
be disposed of vide order dated 21.10.2015, which reads thus:
“Mr. Prabhav Mehta learned advocate for the applicants states that
in view of the order dated 14 October, 2015 passed by learned single
Judge in Civil Application No. 11412 of 2015 in SCA No. 16266 of
2013, wherein the statement is recorded that the property in question
qua the subject matter of this entry shall not be sold until the main
petition is heard and decided, he seeks permission to withdraw the
proceedings. Permission is granted. Accordingly, the Civil Application
No. 10627 of 2015 and LPA(Stamp) No. 1195 of 2015 in SCA No.
16266 of 2013 with the Civil Application (Stamp) No. 10539 of 2015
shall stand disposed of as withdrawn.”
(Emphasis supplied)
9. It appears that despite having undertaken that the property qua the
subject matter of the disputed entry would not be disposed of till the final
disposal of the main matter; the appellants herein proceeded to execute as
many as 13 sale deeds in favour of different parties and thereby, wilfully
disobeyed the order dated 14.10.2015 passed by the High Court referred
to above.
10. In such circumstances referred to above, the respondents herein
preferred the Misc. Civil Application (Contempt) No. 121 of 2018 and
initiated contempt proceedings against the appellants herein. The High
Court framed the following points for its consideration:
“(i) Whether respondent Nos. 3.1 to 3.4 and 4th respondent have
willfully and deliberately disobeyed the order dated 14.10.2015 passed
in Civil Application (for direction) No.11412 of 2015 in Special Civil
Application No.16266 of 2013?
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1075
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
(ii) Whether the contempt proceedings are liable to be dismissed on
the ground of delay as contended by the respondents or the contempt
application is liable to be dismissed on the ground of limitation
prescribed under Section 20 of the Contempt of Courts Act, 1971?
(iii) What order?”
ADJUDICATION BY HIGH COURT:
11. We shall give a fair idea as to how the High Court dealt with the
contempt proceedings. The High Court first took notice of the various sale
deeds that came to be executed by the appellants herein between 09.11.2015
and 30.10.2018, which were in wilful disobedience of the undertaking given
to the High Court. The details are as under:
No. Index Name of the Party Plot Plot Consid Conside Sale
Page No. area Deed
eration ration
No. date
as per
Index Value
1 157 Jagdish 79 118.48 103115/- 568704/- 9-11-15
Chug
2 158 Rama Rani 80 118.48 103115/- 568704/- 9-11-15
3 159 Prakash 199A 118.48 8500/- 568704/- 19-2-16
Kundu
4 160 Prakash 199B 118.48 8500/- 568704/- 19-2-16
Kundu
5 161 Prakash 200 118.48 8500/- 568704/- 19-2-16
Kundu
6 162 Mafatlal 122B 118.48 8500/- 568704/- 15-3-16
Kalidas HUF (56)
7 163 Mafatlal 122C 118.48 8500/- 568704/- 15-3-16
Kalidas HUF (55)
8 164 Sudesh Dingra 27 152 8500/- 729600/ 17-5-17
9 165 Shilpi Ravi 27A 152 8500/- 729600/ 17-5-17
10 166 Roshan Lal 28 152 8500/- 729600/ 17-5-17
11 167 Sami Kumar 176 118.48 8500/- 568704/- 25-7-17
282730/- 6738432/-
1076 SUPREME COURT REPORTS [2023] 11 S.C.R.
2 Sale deeds done / added afterwards
12 518 Trilokram Mali Shop 19.26 49000/- 298530/- 30-10-18
No. 7
13 555 Yo g e s h K u m a r 175 118.48 8500/- 568704/- 25-7-17
Patel
340230/- 7605666/-
12. The High Court, thereafter, in para 27 of its impugned judgment
took notice of the affidavit dated 23.01.2019 filed by one of the contemnors.
Para 27 reads thus:
“27. In fact the 4th respondent in his affidavit dated 28.08.2005
filed in the present proceeding also admits this fact in paragraph 6
which is already extracted herein supra. In fact in the affidavit dated
23.01.2019 filed in the present contempt proceeding, 4th respondent
has categorically deposed to the following effect:
"I state that I am the power of attorney holder of other
respondents in Misc. Civil Application for contempt. I declare
that I had authorised Senior Advocate Shri S.H.Sanjanwala to
state before the Hon'ble Court that I will not transfer, sell Survey
No.63 and 65 situated at Majura till final disposal of the Special
Civil Application No.16266 of 2013."
(Emphasis supplied)
13. In para 28, the High Court observed thus:
“28. As to what would be the evidentiary value of the statement made
by the learned Senior Advocate pressed into service at earlier point of
time in this proceedings has also received the attention of this Court. It
came to be observed by this Court on 29.01.2019 to the following effect:
"In the present proceedings, affidavits have been filed by the
private respondents wherein unconditional apology is tendered
and a categorical statement is made that there is no scope
for justification of the action of execution of Sale Deeds after
such consent was recorded; namely to maintain status-quo
on the subject land. In another affidavit, it is revealed that the
respondents have instructed the counsel to make statement on
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1077
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
their behalf. Thus, there is no escapement from the action which
reveals willful, deliberate breach of undertaking and statement
made before the Court in the writ proceedings."”
(Emphasis supplied)
14. In para 31, the High Court proceeded to observe thus:
“31. In the instant case it can be noticed that at the behest of 4th
respondent, learned Senior Counsel representing the respondent
Nos.3.1 to 3.4 and 4th respondent had made a statement in Special
Civil Application No.16266 of 2013 while the learned Single Judge
was adjudicating Civil Application (for direction) No.11412 of 2015
filed therein and an undertaking came to be given that the property qua
the subject matter of entry which was undisputedly relating to Survey
Nos.63 and 65 would not be sold and yet the same has been sold by
respondent Nos. 3.1 to 3.4 through their power of attorney holder 4th
respondent. Had this undertaking not been given obviously respondents
in Special Civil Application No.16266 of 2013 who were the appellants
in Letters Patent Appeal (Stamp) No.1196 of 2015 would not have
withdrawn the appeal as not pressed. It is this undertaking given to
this Court on 14.10.2015 which prevented the applicants herein to
withdraw the said appeal and it is this solemn assurance given to the
Court which per-forced them to withdraw the appeal by recording the
statement made by the learned Senior Counsel appearing on behalf
of respondent Nos.3.1 to 3.4 and 4th respondent.”
(Emphasis supplied)
15. In para 33, the High Court took notice of the fact that the contemnors
Nos. 3.1 to 3.4 had not disputed the execution of the power of attorney in
favour of the 4th contemnor; they had not denied the execution of the sale
deeds; they had not even denied having received the benefit under the sale
deeds; and they had also not denied that the power of attorney was not
cancelled. The High Court also took notice of the fact that the explanation
offered by the contemnors that the sale deeds had to be executed as the sale
transactions had already been completed, was an afterthought and lacking
bona fide.
1078 SUPREME COURT REPORTS [2023] 11 S.C.R.
16. In para 35 of the impugned judgment, the High Court observed
that the contemnors had not only violated the undertaking given to the
court but had also taken undue advantage unto themselves, namely, the sale
consideration having flown from the purchasers to the contemnors. The High
Court in this regard observed the following in para 35:
“35. In the instant case the contemnors have not only violated the
undertaking given to the Court but have also taken undue advantage
unto themselves namely the sale consideration has flown from the
purchasers to the vendors i.e. the contemnors. Even according to the
recitals found in the Sale Deeds referred to in the tabular column
hereinabove, it is depicted as Rs.2,82,730/- (in respect of 11 Sale
Deeds); in respect of 2 Sale Deeds executed in the year 2017-18,
the consideration has been depicted as Rs.3,40,230/-. As per the
index value, the consideration amount or proper market value in
respect of 11 Sale Deeds would be Rs.67,38,432/-; whereas in respect
of 2 Sale Deeds the consideration or proper market value as per
index value would be Rs.76,05,666/-. In the reply affidavits filed by
contemnors Nos.3.1 to 3.4, there is not even a whisper with regard
to consideration amount. They neither contend nor plead that the
consideration that has flown under the said Sale Deeds have not
been received by them. On the contrary, the affidavit-in-rejoinder
filed on behalf of the petitioners against the reply filed by respondent
Nos.3.1 to 3.4, it has been specifically contended by the complainants
that contemners in order to hoodwink and overreach the process of
law, an imaginary plea has been projected by way of defense that
"cash" transaction of Rs.8,500/- took place for such sale in the year
2012 wherein no date is mentioned. In fact, the defence put-forth
by contemnor No.3.1 to the effect that she is a housewife, has been
denied in the rejoinder affidavit filed by applicants by raising a
specific plea that in Special Civil Suit No.130 of 1995 filed before
the 2nd Additional Senior Civil Judge, Surat, respondent No.4 in the
cross-examination has deposed that respondent No.3.1 is engaged in
the textile business and she is a Director of M/s. Surat Fabric Cap
Company Limited and in the same breath he has deposed that all
the members of the family were aware of the order dated 14.10.2015
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1079
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
passed by this Court. Insofar as rejoinder affidavit to the reply
affidavit filed by respondent No.3.2, complainants have specifically
contended that respondent No.3.2 was very well aware of the order
dated 14.10.2015 and same is the statement made in the rejoinder
affidavit filed against the reply filed by respondent No.3.3 and 3.4. It
is also contended that sale consideration depicted in the Sale Deeds
are farce and to overreach the order of the Court less consideration
has been reflected as against the real value. To highlight this aspect in
paragraph 6(c) the complainants have contended at the relevant point
of time the Jantri value of the subject land was Rs.4,800/- per sq.mtr.
and the consideration depicted in the Sale Deed is at Rs.8,500/-. It is
also stated that consideration for the sale transaction for 118.80 sq.
mtrs. of land and for the land sold to the extent of 152.00 sq. mtrs.
are similar and hence the complainants contend that respondent
No.4 maliciously sold the subject property at under value rate and
has caused huge loss to the public exchequer. To highlight the fact
that alleged possession certificate which has been relied upon to
contend that sale transaction had already been completed way back
in the year 2012 when compared to the Sale Deed dated 09.02.2016,
it would clearly indicate that survey numbers depicted in both these
documents are distinct and different. Hence, contending that the
possession receipts executed in favour of Prakash Kundu as well as
cash receipts produced on record are forged, bogus and concocted
and contrary to the facts, the complainants have sought for the said
documents being excluded from the purview of consideration of this
Court.”.
(Emphasis supplied)
17. In para 36, the High Court took notice of the fact that the contemnors
in categorical terms had admitted in their affidavit filed in the proceedings,
that they had sold the subject property though fully conversant and aware
of the undertaking given by them before the Court that they would not sell
the property till the disposal of the main petition.
18. In para 37, the High Court looked into the affidavit filed by the
accused No. 4 (power of attorney holder) dated 28.08.2018. Para 37 reads
thus:
1080 SUPREME COURT REPORTS [2023] 11 S.C.R.
“37. Whereas, the accused no. 4 categorically admits of execution
of sale deed, however, he tries to feign ignorance by deposing in his
affidavit dated 28.08.2018 to the following effect:-
"I say that the main allegation made against us is, that contrary
to the orders of this Hon'ble Court dated 14.10.2015, we have
sold the property to the persons who are mentioned in the indexed
documents annexed with the contempt application. I say that
I, bona fide believed that, the transactions mentioned in the
indexed documents on page-157 onwards alleging contempt
against us, without trying to over justify the case, it is my duty
to point out the correct facts which led me to bona fide believe
that sale was completed. I say that on page-158 copy of the index
register is produced regarding the sale in favour of Prashantbhai
Haradhanbhai Kondu, which is registered on 09.02.2016. I am
producing herewith a copy of the sale deed because, the index
produced by the applicant does not reflect the correct position.
Hereto and marked as Annexure R1 is copy of the sale deed
dated 09.02.2016. It is very clear that the sale was completed on
21.08.2012, but it was only not registered. As per the definition
of sale, the transaction is complete since we have received the
consideration money and we had handed over the possession.
The said fact is also mentioned in the sale deed.””
(Emphasis supplied)
19. In para 40, the High Court took notice of the fact that even after
notice was issued to the contemnors in the contempt proceedings, they
continued to commit further acts contempt. Para 40 reads thus:
“40. The accused have continued to commit further contempt. We
say so for the reason that additional affidavit dated 06.04.2019 filed
by complainant No. 1.1 enclosing the sale deed dated 30.10.2018
would clearly disclose that accused no. 4 on behalf of himself and
also on behalf of accused no. 3.1 to 3.4 had sold shop bearing No. 7
admeasuring 19.2 sq. mtrs. in the land bearing Survey No. 63 which
land was also agreed not to be sold by way of undertaking given to
this Court on 14.10.2015. Additional affidavit dated 18.07.2019 has
been filed by complainant No. 1.1 which discloses another portion of
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1081
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
land admeasuring 118.48 in Survey No. 63 has been disposed of vide
sale deed dated 25.07.2017. Respondent No. 4 who had been examined
as a witness in Special Civil Suit No. 130 of 1995 in his deposition
(Annexure B-2) has admitted that he was aware of the interim order
in which breach is alleged. In fact he has also deposed that all the
family members are well aware of the order dated 14.10.2015. His
admission reads thus:
"It is true that my Advocate. Mr. Shirishbhai Sanjanwala, under
my instructions, gave oral undertaking that for Survey No. 63
and 65 of Majura will not be sold till the final outcome of CMA.
I do not remember it orally but it might be mentioned in the
Honourable High Court of Gujarat Application No. 16266/13
in reference to the undertaking given by me to my Advocate Mr.
Shirishbhai Sanjanwala, after reading over the order dated
14.10.2015 that what was the reason that he gave the assurance
on my behalf. I did not have the occasion of meeting advocate
Mr. Shirish Sanjanwala after 14.10.2015 or having discussion
with him.".
(Emphasis supplied)
20. The High Court thereafter, considered whether the unconditional
apology tendered by the contemnors deserved to be accepted and whether
they should be exonerated from the contempt proceedings or not. In this
regard, the High Court observed in paras 52 and 55 respectively as under:
“52.The accused no. 3.1 to 3.4 not having taken any steps as expected
of a reasonable prudent person to cancel the power of attorney given
to 4th respondent at the first available opportunity but on the other
hand having sold the property even after notice of contempt being
served upon them, we are of the considered view that remorse expressed
or unconditional apology tendered by them cannot be accepted as
genuine and/or bona fide. On the other hand, the conduct of accused
and particularly accused no. 3.1 to 3.4 not even cancelling sale deeds
would be sufficient to arrive at a conclusion that contrition or remorse
expressed by them is not bona fide and has been made to stave off
the contempt proceedings by making a show of apology having been
tendered and trying to take umbrage by contending that accused no.
1082 SUPREME COURT REPORTS [2023] 11 S.C.R.
3.1 and 3.2 are housewives cannot be allowed to take umbrage or use
the protective umbrella, and extending them of such benevolence would
result in pure stream of administration of justice being polluted by such
persons by feigning ignorance and as such we are of the considered
view that they should be dealt with iron hands.
××× ××× ×××
55. Applying the aforestated principle to the facts on hand as noticed
by us earlier in hereinabove, that accused No. 3.1 to 3.4 are attempting
to improve their case step by step and stage by stage and tendering
apology without any real contrition and same not being from the
heart but offered as a lip sympathy to stave off the consequences that
would flow from their contemptuous act, the affidavit of apology has
been filed. Had there been real remorse, they would have on notice
of contempt being served, forthwith cancelled the power of attorney
executed in favour of accused no. 4. However, they have not chosen to
do so. On the other hand, they have allowed him to continue to perform
duties as their agent and derived benefits out of it, which discloses
there is no real contrition expressed by them which would satisfy the
Courts' conscious..
(Emphasis supplied)
21. The High Court thereafter, proceeded to consider whether the
contempt proceedings were time barred. The High Court looked into Section
20 of the Act 1971 and took the view that the cause of action was recurring
in nature and the wrong had continued. The proceedings initiated were not
barred under Section 20 of the Act 1971.
22. In the last, the High Court recorded what had happened on the date
when the contemnors remained present in the court to answer the charge
framed against them. The High Court observed in para 61 as under:
“As such, this Court by order dated 18.12.2018 directed the contemnors
to be present personally and to answer as to why charge should not be
framed against them. In reply to the same, an affidavit has been filed by
the contemnors on 24.12.2018 admitting thereunder the disobedience
and breach of the undertaking given to the Court. In the words of fourth
respondent, the admission reads to the following effect:
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1083
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
"2. I sincerely regret that the execution of the sale deeds was in
breach of the statement made by learned counsel on my behalf.
I hereby sincerely tender unconditional apology with clear
understanding that there is breach of the statement. I submit
that there is no scope for justification of the action of execution
of sale deeds which I undertook under the pressure built up by
the agreement-holders. I request Your Lordships to accept my
apology if deem fit and proper.".
(Emphasis supplied)
23. The High Court ultimately held the appellants guilty of contempt
for their deliberate and wilful disobedience of the undertaking and punished
them accordingly.
24. In such circumstances referred to above, the appellants are herein
before this Court with the present appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS IN CIVIL
APPEAL NO. 5041 OF 2022
25. Mr. Mukul Rohatgi, the learned Senior Counsel appeared for the
appellants of Civil Appeal No. 5041 of 2022. Mr. Rohatgi submitted the
following:
(a) The appellant Nos. 1 and 2 respectively had no idea or proper
knowledge as to what was transpiring in the proceedings before
the Revenue Authorities or the High Court for the reason that
the appellants had appointed Balwantbhai Somabhai Bhandari
(appellant of the connected appeal) as their power of attorney
holder. The power of attorney holder looked after the litigation
relating to the subject land and the appellants were not involved
in any manner in the day to day activities. The sale deeds were
not signed by the appellants as they were executed by the power
of attorney holder.
(b) The High Court materially erred in holding that the appellants
had admitted in their affidavits that they were fully conversant
and aware of the undertaking given before the High Court. This
is a glaring factual error in as much as the perusal of all the
three affidavits dated 07.10.2018, 28.10.2018 and 24.12.2018
1084 SUPREME COURT REPORTS [2023] 11 S.C.R.
respectively filed by the appellants state to the contrary that they
were not aware of the order dated 14.10.2015.
(c) The High Court should have accepted the unconditional and
bona fide apology made at the first instance. The High Court
went wrong in saying that the apology was tendered at a belated
stage.
(d) Section 12 of the Act 1971 stipulates the punishment for contempt
of Court. The proviso to the said section states that ‘accused
may be discharged or punishment awarded may be remitted on
apology being made to the satisfaction of the court’. Furthermore,
the Explanation to the said proviso states that “an apology
shall not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide.”
(e) The High Court committed a serious error in not accepting the
explanation offered by the appellants that the sale deeds had
already been completed prior to the order dated 14.10.2015 and
only formal registration of the sale deeds was left.
(f) The High Court committed error in recording that the properties
were sold even after the notice of contempt was issued to the
appellants.
26. In support of aforesaid submissions, the learned Senior Counsel
placed reliance on the following case law:
(i) Rama Narang v. Ramesh Narang and Another, (2006) 11 SCC
114;
(ii) Anil K. Surana and Another v. State Bank of Hyderabad, (2007)
10 SCC 257;
(iii) Bharat Steel Tubes Limited v. IFCI Limited, (2010) 14 SCC
77; and
(iv) Abhishek Kumar Singh v. G. Pattanaik and Others, (2021) 7
SCC 613.
27. In such circumstances referred to above, the learned Senior Counsel
prayed that there being merit in his appeal, the same be allowed and the
impugned judgment and order of the High Court be set aside.
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1085
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
28. Mr. Mihir Joshi, the learned Senior Counsel appearing on behalf
of the appellants in the Civil Appeal No. 5041 of 2022 made the following
submissions:
(a) The High Court has erred in not accepting the apology tendered
by the appellants on the ground that it was not tendered at the
first instance. Notice in Form-I was issued on 23.04.2018. After
issuance of notice, the very first affidavit of the appellant dated
24.08.2018 contains an unconditional apology. A further affidavit
dated 24.12.2018 also offers unconditional apology. The apology
being genuine as is evident from the facts of the case and tendered
at the first instance ought to have been accepted by the Court.
The High Court rendered a factually incorrect finding in para 49
(iv) that there was no unconditional apology tendered at the first
instance so as to construe the acts of the accused as not being
deliberate or wilful. The High Court erred in holding in para 38
of its impugned order that the first affidavit dated 28.08.2018 did
not contain an unconditional apology, which is factually incorrect.
The said affidavit dated 28.08.2018 tendered an unconditional
apology.
(b) In fact, the contempt proceedings were not maintainable at all
since the statement recorded on behalf of the appellant in the
order dated 14.10.2015 is neither an order of the Court nor an
undertaking given to the Court and therefore, there could be no
breach thereof, amounting to civil contempt as contemplated
under section 2(b) of the Act 1971. It is self-evident that the
statement is an assurance to the other party and not an undertaking
to the court. Breach of such statement may invite an action
for restitution by the opposite party which would have to be
adjudicated in duly constituted proceedings, but it would not
invite proceedings for contempt since it is neither an order of
the court nor an undertaking to the court. This distinction is well
known and accepted by Courts and the contempt application
ought to have been dismissed as not maintainable only on this
ground
1086 SUPREME COURT REPORTS [2023] 11 S.C.R.
(c) The High Court clearly erred in holding that breach of the
statement recorded in the order dated 14.10.2015 (assuming
the same is considered as an undertaking contemplated under
Section 2(b) of the Act 1971) was a wilful and deliberate breach,
overlooking the following facts:
(i) The Court has erred in disbelieving the explanation tendered
by the Appellants regarding the necessity of the sales since
the subject transfers had been concluded with full payment
of consideration and handing over of possession vide the
possession receipts much prior to 14.10.2015 and therefore,
the transfers were not covered by the statement recorded on
14.10.2015. The High Court should have looked into the
documents such as possession receipts, payment receipts
and extracts of bank ledger statements, in respect of the
subject sales produced before the High Court. The High
Court erred in holding that no material had been placed to
establish or demonstrate that the property had in fact been
sold in the year 2012 itself. The High Court erred in holding
in para 35that an imaginary plea had been made by way
of a defence that cash transaction took place for sale in the
year 2012 wherein no date is mentioned.
(ii) The High Court erred in holding that the documents as
above were purportedly concocted and that only the income
tax returns could be the best evidence.
(iii) The High Court overlooked the fact that the impugned sale
transactions were only of 1521 sq.mtrs. of survey no. 63
admeasuring 33,790 sq.mtrs. and that the survey no. 65
admeasuring 31,095 sq.mtrs. was unsold and vacant which
clearly reflected adherence to the statement as understood
by the Appellants and supported the explanation of the
Appellants that the subject sales of small plots of 118
sq.mtrs. each had to be formally concluded since the actual
transfers had taken place many years prior to 14.10.2015
and the allottees were being seriously prejudiced in
development of the plots and such transfers were never
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1087
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
intended to be covered under the statement of 14.10.2015
which would operate only for future transfers.
(iv) The High Court erred in overlooking that the standard of
proof required in a contempt proceeding, being a quasi-
criminal proceeding, is that of a criminal proceeding and the
breach has to be established beyond reasonable doubt. The
facts of the present case do not establish beyond reasonable
doubt that there was a wilful breach or disobedience of
an order of the court, or statement or undertaking given
to the court. The power of contempt should be exercised
cautiously and only after the required standard of proof is
met.
(v) The High Court erred in proceeding on the basis that the
Appellants continued to commit contempt and in that
regard relying on the transactions stated at Serial Nos.12
and 13 respectively of the table at para 26 of the impugned
judgement. The said transaction at Serial No.12 purportedly
of 30.10.2018, of a shop, is not a part of the subject lands
S.No.63 and 65 with regard to which order dated 14.10.2015
was passed; and the transaction at Serial No.13 is of
25.7.2017, hence it is not of a date after the filing of the
contempt petition (filed on 12.01.2018).
(d) The High Court has erred in overlooking the context and
background facts in which the statement was made and what
was meant and covered in the statement in light of the same.
(e) The Court has overlooked the requirement of section 13 of the
Act 1971 since the conduct of the Appellant has not obstructed
the cause of justice in any manner whatsoever. As held by this
Court in Murray & Co. v. Ashok Kr. Newatia & Another, (2000)
2 SCC367 (paras 19 to 22), the language of Section 13 makes
it clear that it is not enough there should be some technical
contempt of court, but it must be shown that the act of contempt
would otherwise substantially interfere with the due course of
justice which has been equated with “due administration of
justice”.
1088 SUPREME COURT REPORTS [2023] 11 S.C.R.
(f) The High Court erred in imposing a sentence of imprisonment
for civil contempt without assigning any reasons as to why such
an exception had to be made more particularly overlooking the
following:
(i) A close scrutiny of Section 12(3) indicates that the
legislature intended that in case of civil contempt a
sentence of fine alone should be imposed except where
the Court considers that the ends of justice make it
necessary to pass a sentence of imprisonment also. Before
passing an extreme sentence, the Court ought to assign
special reasons after proper application of mind. There is
absolutely no justification or reason set out in the judgment
supporting a bare conclusion that imprisonment is justified
in the case.
(ii) The High Court erred in overlooking the bona fides of the
Appellants which would have established that there was no
wilful breach of the statement recorded in the order dated
14.10.2015 and in any case, would certainly not justify
imprisonment. In particular, the Court has overlooked that
the appellant tendered his unconditional apology at the
first instance on 24.08.2018; explained the transaction with
necessary documents immediately thereafter on 07.10.2018
without detracting from the apology; proposed remedial
measures of keeping an equivalent area of land open and
vacant till the filing of the petition by way of affidavit dated
04.01.2019; that additional land was offered over and above
the one proposed in the earlier affidavit vide affidavit dated
09.01.2019 and that the Appellants had personally remained
present before the court at all hearings of the contempt
application without seeking any exemption despite one of
the contemnors being diagnosed and treated for advanced
stage of cancer.
(iii) The conduct of the Appellants subsequent to the impugned
judgment also shows their due deference to the orders of
the court. Each accused has deposited costs and fine with
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1089
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
the registry of the High Court. In compliance with the
direction nos. (ii) and (iii) contained in para 63 directing
the accused to restore the position prevailing prior to the
statement recorded in the order dated 14.10.2015, the
appellants have also returned the consideration amount
and requested the purchasers for compliance with the
judgment.
(g) The High Court ought to have considered the fact that the
Appellants had offered to purge the alleged contempt, by
offering alternative land. In the affidavit dated 04.01.2009, the
Appellants had offered to deposit the sale consideration and
also that since the sale is only of 1430.81 sq. meters of Survey
No.63, the Appellant is willing to keep aside other lands in
his possession, for the benefit of the Complainants. A further
affidavit was filed on 09.01.2019, wherein the Appellants had
offered valuable lands, at Khatodara, with an assurance not to
transfer or alienate such lands till the writ petition is decided.
It is well settled that a sale pendente lite or even in alleged
breach of an injunction order is not per se void, and the Court
has a liberty to balance the equities in a case. The order of the
High Court is harsh. The plot owners are bona fide purchasers
of the plots for consideration without notice. The sale in favour
of the plot owners have been set aside without any notice to
them or hearing them. The High Court could have balanced
the equities rather than setting aside the sale deeds already
executed bona fide by the Appellant. This Court in T. Ravi
and Another v. B. Chinna Narasimha and Others reported
in (2017) 7 SCC 342, has held that the transfer of the suit
property pendente lite is not void ab initio and the purchaser
of any such property take the bargain, subject to the rights of
the Plaintiff in the pending suit. The Court further held that
the same principle would apply to a case involving a breach
of an injunction issued by a competent court, and such breach
would not render the transfer by way of an absolute sale void
or ineffective.
1090 SUPREME COURT REPORTS [2023] 11 S.C.R.
29. In support of the aforesaid submissions, the learned Senior Counsel
placed reliance on the following case law:
(i) Sevakram Prabhudas v. H.S. Patel and Others, 2000 (1) vol.
41 GLR 715;
(ii) Mrityunjoy Das and Another v. Sayed Hasibur Rahaman and
Others, (2001) 3 SCC 739; and
(iii) Supreme Court Bar Association v. Union of India and Another,
(1998) 4 SCC 409.
30. In such circumstances referred to above, the learned counsel prayed
that there being merit in his appeal, the same be allowed and the impugned
judgment and order be set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
31. On the other hand, the learned counsel appearing for the respondents
herein vehemently submitted that no error not to speak of any error of law
could be said to have been committed by the High Court in passing the
impugned judgment and order..
32. The learned counsel appearing for the respondents made the
following submissions:
(a) The assurance given by the learned senior advocate to the court
as recorded in order dated 14.10.2015 by the High Court is a clear
undertaking as per Sections 12 and 13 respectively of the Act
1971. It should be seen as a clear-cut undertaking given to the
court and it is supposed to be binding to the parties concerned.
Had this undertaking not been given the respondents herein who
were the appellants in LPA (Stamp) No. 1196 of 2015 would not
have withdrawn the appeal as not pressed. Also, the appellants of
LPA/respondents herein did not invite any further order in SCA
No. 16266 of 2013 due to the said undertaking.
(b) The undertaking given by Sr. Adv. "That the property qua the
subject matter of this entry and the petition shall not be sold out
till the main petition is heard and decided" clearly falls within
section 2(b) of Act 1971. The undertaking given by learned
counsel is completely binding on the appellants.
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1091
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
(c) Despite such clear undertaking, the appellants sold the plots
between 2015 and 2018. If the appellants wanted to sell the
plots under certain compelling circumstances, they could have
approached the High Court for modification or variation of
the order which they did not deem fit to do. Further, as a clear
continuing act of contempt, even after the execution of the sale
deeds the appellants failed to bring the said aspect to the notice
of the High court.
(d) The appellants continued to commit contempt even during the
pendency of contempt proceedings. They sold the shop bearing
no. 7 on 30.10.2018 i.e., 9 months after the notice of contempt
was issued. They also sold the land bearing Survey No. 65 on
09.09.2021 with the consideration amount of Rs. 51,93,00,000/-
which is also on record of the contempt proceedings of the High
Court.
(e) The appellants have not produced any authenticated documents in
support of their case of having put the buyers in possession in the
year of 2012 (income tax return, bank statement etc.). The cash
receipt which they have produced is issued by S. K. Industries
Service Society and not by the present appellants and also all of
those documents are unauthenticated, forged and fabricated. The
High Court has duly taken notice of this fact in its impugned order
(para 35 at page 38). As per law, the sale is deemed to have been
completed on the date when the sale deed is registered, which
in the instant case are admittedly after the undertaking given by
Sr. Advocate in the SCA No. 16266 of 2013 as recorded in the
order dated 14.10.2015 of the High Court.
(f) The apology given by the appellants is a farce. Apology from the
appellants did not come at the first instance. If they were really
sorry, they should have cancelled the sale deeds executed during
the pendency of the contempt proceedings, which they have not
done. It is only in the present proceedings that they have tried
to show that they attempted to cancel the sale deeds by way of
sending letters to the plot holders. Thus, they have tried to show
that they made an effort to comply with the order of the High
1092 SUPREME COURT REPORTS [2023] 11 S.C.R.
court, but no proof has been produced as to when and in what
manner the notices were sent or executed i.e., by way of post or
email or courier etc. Such dubious conduct of the appellants goes
to show that despite committing contempt and having shown no
remorse, they are still trying to misguide this Court by producing
such documents which from their very bare reading appear to be
false, unreliable and fabricated.
(g) In the course of the hearing of the appeals, Mr. Joshi, the learned
senior counsel had suggested an alternate remedy of keeping
aside the land of Survey No. 65, but in reality, the appellants
have sold that very land also during the pendency of contempt
proceedings in the year 2021. Thus, the contemnors have tried
to misguide this court by making such false statements.
33. In support of his aforesaid submissions, the learned Senior Counsel
relied on the decision of this Court in the case of T. Ravi (supra).
34. In such circumstances referred to above, it was prayed on behalf
of the respondents that there being no merit in both the statutory appeals
those may be dismissed.
SUBMISSIONS ON BEHALF OF THE APPELLANTS IN CIVIL
APPEAL NO. 4869 OF 2023
35. The appellants are the purchasers of the plots from the contemnors.
Mr. Shyam Divan, the learned Senior Counsel appearing for the purchasers
submitted that the High Court committed a serious error in declaring the
sale deeds executed by the contemnors in favour of his clients as non est or
void. According to Mr. Divan, assuming for the moment that the transfer
was in wilful disobedience of the undertaking given by the contemnors,
such transfers are not void transfers. In other words, the transfer of suit
property pendente lite is not void ab initio. He would argue that his clients
are bona fide purchasers of the property for value without notice. In such
circumstances, the High Court ought to have balanced the equities more
particularly when the contemnors had offered other alternative lands to
protect the interests of the complainants.
36. It was argued that the High Court should have insisted for the
presence of the purchasers in the contempt proceedings. Without giving any
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1093
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
opportunity of hearing to the purchasers, the High Court ought not to have
declared the sale transactions as void. It was also argued that the appellants
have further transferred the properties and that would make them vulnerable
to further civil and criminal proceedings by such subsequent purchasers.
37. In such circumstances referred to above, Mr. Divan, the learned
Senior Counsel prayed that this Court may tilt the equities and protect the
bona fide purchasers of the property for value without notice.
38. The aforesaid submission canvassed by Mr. Shyam Divan, the
learned counsel appearing for the respondents suggests that the appellants
(purchasers) have further transferred the properties and as on date they have
no further interest in the subject properties.
ANALYSIS
39. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls for
our consideration is whether the High Court committed any error in passing
the impugned judgment and order?
PRINCIPLES GOVERNING THE EXERCISE OF CONTEMPT
JURISDICTION
40. The object of the discipline enforced by the court in case of
contempt of court is not to vindicate the dignity of the court or the person
of the Judge, but to prevent undue interference with the administration of
justice.
41. Any interference with the course of justice is an affront to the
majesty of law and the conduct of interference is punishable as contempt
of court. Public interest demands that there should be no interference with
the judicial process, and the effect of the judicial decision should not be
pre-empted or circumvented. (Reliance Petrochemicals Ltd. v. Proprietors
of Indian Express Newspapers Bombay Pvt. Ltd. and Others reported
in(1988) 4 SCC 592).
42. If a party, who is fully in the know of the judgment/order of the
Court, is conscious and aware of the consequences and implications of the
order of the Court, acts in violation thereof, it must be held that disobedience
is wilful. To establish contempt of court, it is sufficient to prove that the
1094 SUPREME COURT REPORTS [2023] 11 S.C.R.
conduct was wilful, and that the contemnor knew of all the facts which made
it a breach of the undertaking.
43. The following conditions must be satisfied before a person can
be held to have committed civil contempt: (i) there must be a judgment,
decree, direction, order, writ or other process of a court; (ii) there must be
disobedience to such judgment, decree, direction, order, writ or other process
of a court; and (iii) such disobedience of the judgment, decree, direction,
order, writ or other process of a court must be wilful. [Patel Rajnikant
Dhulabhai and Another v. Patel Chandrakant Dhulabhai and Others,
reported in (2008) 14 SCC 561]
44. It behoves the court to act with as great circumspection as
possible, making all allowances for errors of judgment. It is only when a
clear case of contumacious conduct, not explainable otherwise, arises that
the contemnor must be punished. Punishment under the law of contempt is
called for when the lapse is deliberate and in disregard of one's duty and in
defiance of authority. Contempt proceedings are quasi-criminal in nature,
and the standard of proof is the same as in other criminal cases. The alleged
contemnor is entitled to the protection of all safeguards/rights, including
benefit of doubt. [Kanwar Singh Saini v. High Court of Delhi reported in
(2012) 4 SCC 307].
45. The sanctity to judicial proceedings is paramount to a society
governed by law. Otherwise, the very edifice of democracy breaks and
anarchy reigns. The Act 1971 is intended to correct a person deviating
from the norm and trying to breach the law/assuming law on to himself. It
intends to secure confidence of the people in the administration of justice by
disciplining those erring in disobeying the orders of the Court/undertaking
given to court.
46. This Court in a plethora of cases has explained the true purport
of exercise of powers under the 1971 Act. In Mrityunjoy Das (supra), it
held that:
“13. Before however, proceeding with the matter any further, be it noted
that exercise of powers under the Contempt of Courts Act shall have to
be rather cautious and use of it rather sparingly after addressing itself
to the true effect of the contemptuous conduct. The court must otherwise
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1095
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
come to a conclusion that the conduct complained of tantamounts to
obstruction of justice which if allowed, would even permeate in our
society (vide Murray & Co. v. Ashok Kr. Newatia [(2000) 2 SCC 367
: 2000 SCC (Cri) 473] ). This is a special jurisdiction conferred on
to the law courts to punish an offender for his contemptuous conduct
or obstruction to the majesty of law. It is in this context that the
observations of this Court in Murray case [(2000) 2 SCC 367 : 2000
SCC (Cri) 473] in which one of us (Banerjee, J.) was party needs to
be noticed: (SCC p. 373, para 9)
“The purpose of contempt jurisdiction is to uphold the majesty
and dignity of the courts of law since the image of such a
majesty in the minds of the people cannot be led to be distorted.
The respect and authority commanded by courts of law are
the greatest guarantee to an ordinary citizen and the entire
democratic fabric of the society will crumble down if the respect
for the judiciary is undermined. It is true that the judiciary will
be judged by the people for what the judiciary does, but in the
event of any indulgence which can even remotely be termed to
affect the majesty of law, the society is bound to lose confidence
and faith in the judiciary and the law courts thus would forfeit
the trust and confidence of the people in general.””
47. The Constitutional Bench of this Court in the case of Supreme
Court Bar Association (supra), while discussing the ambit of powers under
the Act 1971 and the principles to be followed while punishing a party held
as under:
“28. An analysis of the above provision shows that sub-section (1)
of Section 12 provides that in a case of established contempt, the
contemner may be punished:
(a) with simple imprisonment by detention in a civil prison; or
(b) with fine; or
(c) with both.
A careful reading of sub-section (2) of Section 12 reveals that the Act
places an embargo on the court not to impose a sentence in excess
1096 SUPREME COURT REPORTS [2023] 11 S.C.R.
of the sentence prescribed under sub-section (1). A close scrutiny of
sub-section (3) of Section 12 demonstrates that the legislature intended
that in the case of civil contempt a sentence of fine alone should be
imposed except where the court considers that the ends of justice make
it necessary to pass a sentence of imprisonment also. Dealing with
imposition of punishment under Section 12(3) of the Act, in the case
of Pushpaben v. Narandas V. Badiani [(1979) 2 SCC 394 : 1979 SCC
(Cri) 511] this Court opined: (SCC p. 396, para 6)
“6. A close and careful interpretation of the extracted section
leaves no room for doubt that the legislature intended
that a sentence of fine alone should be imposed in normal
circumstances. The statute, however, confers special power on
the Court to pass a sentence of imprisonment if it thinks that ends
of justice so require. Thus before a Court passes the extreme
sentence of imprisonment, it must give special reasons after a
proper application of its mind that a sentence of imprisonment
alone is called for in a particular situation. Thus, the sentence of
imprisonment is an exception while sentence of fine is the rule.”
××× ××× ×××
34. The object of punishment being both curative and corrective, these
coercions are meant to assist an individual complainant to enforce his
remedy and there is also an element of public policy for punishing civil
contempt, since the administration of justice would be undermined
if the order of any court of law is to be disregarded with impunity.
Under some circumstances, compliance of the order may be secured
without resort to coercion, through the contempt power. For example,
disobedience of an order to pay a sum of money may be effectively
countered by attaching the earnings of the contemner. In the same
manner, committing the person of the defaulter to prison for failure
to comply with an order of specific performance of conveyance of
property, may be met also by the court directing that the conveyance
be completed by an appointed person. Disobedience of an undertaking
may in the like manner be enforced through process other than
committal to prison as for example where the breach of undertaking
is to deliver possession of property in a landlord-tenant dispute. Apart
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1097
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
from punishing the contemner, the court to maintain the majesty of law
may direct the police force to be utilised for recovery of possession and
burden the contemner with costs, exemplary or otherwise.
××× ××× ×××
36. In deciding whether a contempt is serious enough to merit
imprisonment, the court will take into account the likelihood of
interference with the administration of justice and the culpability of
the offender. The intention with which the act complained of is done
is a material factor in determining what punishment, in a given case,
would be appropriate.
××× ××× ×××
42. The contempt of court is a special jurisdiction to be exercised
sparingly and with caution whenever an act adversely affects the
administration of justice or which tends to impede its course or tends
to shake public confidence in the judicial institutions. This jurisdiction
may also be exercised when the act complained of adversely affects
the majesty of law or dignity of the courts. The purpose of contempt
jurisdiction is to uphold the majesty and dignity of the courts of law.
It is an unusual type of jurisdiction combining “the jury, the judge
and the hangman” and it is so because the court is not adjudicating
upon any claim between litigating parties. This jurisdiction is not
exercised to protect the dignity of an individual judge but to protect the
administration of justice from being maligned. In the general interest
of the community it is imperative that the authority of courts should
not be imperilled and there should be no unjustifiable interference
in the administration of justice. It is a matter between the court and
the contemner and third parties cannot intervene. It is exercised in a
summary manner in aid of the administration of justice, the majesty of
law and the dignity of the courts. No such act can be permitted which
may have the tendency to shake the public confidence in the fairness
and impartiality of the administration of justice..
(Emphasis supplied)
48. To hold a person guilty of civil contempt, “wilful disobedience”
is an indispensable requirement. Whether the conduct of contemnor is
1098 SUPREME COURT REPORTS [2023] 11 S.C.R.
deliberate and wilful can be considered by assessing the material on record
and attendant circumstances.
PIVOTAL ISSUES
49. We would like to address ourselves broadly on four questions:
(i) Whether the wilful breach of an assurance in the form of an
undertaking given by a counsel/ advocate on behalf of his client
to the court would amount to “civil contempt” as defined under
Section 2(b) of the Act 1971?
(ii) There exists a distinction between an undertaking given to a party
to the lis and the undertaking given to a court. The undertaking
given to a court attracts the provisions of the Act 1971 whereas
an undertaking given to a party to the lis by way of an agreement
of settlement or otherwise would not attract the provisions of the
said Act. Whether in the present case an undertaking could be
said to have been given to the court?
(iii) Whether the contempt court has the power to declare any
contemptuous transaction non est or void? In other words,
although the transfer of the suit property pendente lite is not
void ab initio yet when the court is looking into such transfers
in contempt proceedings, whether the court can declare such
transactions to be void in order to maintain the majesty of
law?
(iv) Whether the beneficiaries of a contemptuous transaction have
a right to be heard in the contempt proceedings on the ground
that they are necessary or proper parties as they are bona fide
purchasers of the suit property for value without notice?
(v) Whether the apology tendered by the contemnors deserves to be
accepted or is it a legal trick to wriggle out of responsibility?
WHAT IS WILFUL DISOBEDIENCE?
50. In order to decide whether the appellants are guilty of civil
contempt, we would like to refer to Section 2(b) of the Contempt of Courts
Act, 1971, which reads as under:—
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1099
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
“2. Definitions.—In this Act, unless the context otherwise requires,—
××× ××× ×××
(b) "civil contempt" means 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;”
51. The Black's Law Dictionary, Sixth Edition, at page 1599, defines
“willful” as hereunder:
"Proceeding from a conscious motion of the will; voluntary; knowingly;
deliberate. Intending the result which actually comes to pass; designed;
intentional; purposeful; not accidental or involuntary.
Premeditated; malicious; done with evil intent, or with a bad motive or
purpose, or with indifference to the natural consequences; unlawful;
without legal justification.
An act or omission is "willfully" done, if done voluntarily and
intentionally and with the specific intent to do something the law
forbids, or with the specific intent to fail to do something the law
requires to be done; that is to say, with bad purpose either to disobey
or to disregard the law. It is a word of many meanings, with its
construction often influenced by its context. In civil actions, the word
(willfully) often denotes an act which is intentional, or knowing,
or voluntary, as distinguished from accidental. But when used in a
criminal context it generally means an act done with a bad purpose;
without justifiable excuse; stubbornly, obstinately, perversely."
52. This Court in Niaz Mohammad and Othersv. State of Haryana
and Others reported in (1994) 6 SCC 332, explaining the expression “wilful
disobedience” had held:—
“9. Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter
referred to as ‘the Act’) defines “civil contempt” to mean “wilful
disobedience to any judgment, decree, direction, order, writ or other
process of a court …”. Where the contempt consists in failure to comply
with or carry out an order of a court made in favour of a party, it is a
civil contempt. The person or persons in whose favour such order or
direction has been made can move the court for initiating proceeding
1100 SUPREME COURT REPORTS [2023] 11 S.C.R.
for contempt against the alleged contemner, with a view to enforce
the right flowing from the order or direction in question. But such a
proceeding is not like an execution proceeding under Code of Civil
Procedure. The party in whose favour an order has been passed, is
entitled to the benefit of such order. The court while considering the
issue as to whether the alleged contemner should be punished for not
having complied with and carried out the direction of the court, has
to take into consideration all facts and circumstances of a particular
case. That is why the framers of the Act while defining civil contempt,
have said that it must be wilful disobedience to any judgment, decree,
direction, order, writ or other process of a court. Before a contemner is
punished for non-compliance of the direction of a court, the court must
not only be satisfied about the disobedience of any judgment, decree,
direction or writ but should also be satisfied that such disobedience
was wilful and intentional. The civil court while executing a decree
against the judgment-debtor is not concerned and bothered whether the
disobedience to any judgment, or decree, was wilful. Once a decree has
been passed it is the duty of the court to execute the decree whatever
may be consequence thereof. But while examining the grievance of
the person who has invoked the jurisdiction of the court to initiate
the proceeding for contempt for disobedience of its order, before any
such contemner is held guilty and punished, the court has to record a
finding that such disobedience was wilful and intentional. If from the
circumstances of a particular case, brought to the notice of the court,
the court is satisfied that although there has been a disobedience but
such disobedience is the result of some compelling circumstances under
which it was not possible for the contemner to comply with the order,
the court may not punish the alleged contemner.”.
(Emphasis supplied)
53. In Ashok Paper Kamgar Union v. Dharam Godha and Others
reported in (2003) 11 SCC 1, the expression ‘wilful disobedience’ in the
context of Section 2(b) of the Act was read to mean an act or omission
done voluntarily and intentionally with the specific intent to do something,
which the law forbids or with the specific intention to fail to do something
which the law requires to be done. Wilfulness signifies deliberate action
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1101
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
done with evil intent and bad motive and purpose. It should not be an act,
which requires and is dependent upon, either wholly or partly, any act or
omission by a third party for compliance.
54. In Ram Kishan v. Tarun Bajaj and Others reported in (2014) 16
SCC 204, it was observed as under:—
“12. Thus, in order to punish a contemnor, it has to be established
that disobedience of the order is “wilful”. The word “wilful”
introduces a mental element and hence, requires looking into
the mind of a person/contemnor by gauging his actions, which is
an indication of one's state of mind. “Wilful” means knowingly
intentional, conscious, calculated and deliberate with full knowledge
of consequences flowing therefrom. It excludes casual, accidental,
bona fide or unintentional acts or genuine inability. Wilful act does
not encompass involuntarily or negligent actions. The act has to be
done with a “bad purpose or without justifiable excuse or stubbornly,
obstinately or perversely”. Wilful act is to be distinguished from an
act done carelessly, thoughtlessly, heedlessly or inadvertently. It does
not include any act done negligently or involuntarily. The deliberate
conduct of a person means that he knows what he is doing and intends
to do the same. Therefore, there has to be a calculated action with evil
motive on his part. Even if there is a disobedience of an order, but such
disobedience is the result of some compelling circumstances under
which it was not possible for the contemnor to comply with the order,
the contemnor cannot be punished. “Committal or sequestration
will not be ordered unless contempt involves a degree of default
or misconduct.” (Vide S. Sundaram Pillai v. V.R. Pattabiraman [S.
Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591], Rakapalli
Raja Ram Gopala Rao v. Naragani Govinda Sehararao [Rakapalli
Raja Ram Gopala Rao v. Naragani Govinda Sehararao, (1989) 4
SCC 255 : AIR 1989 SC 2185], Niaz Mohammad v. State of Haryana
[Niaz Mohammad v. State of Haryana, (1994) 6 SCC 332 : AIR 1995
SC 308], Chordia Automobiles v. S. Moosa [Chordia Automobiles
v. S. Moosa, (2000) 3 SCC 282], Ashok Paper Kamgar Union v.
Dharam Godha [Ashok Paper Kamgar Union v. Dharam Godha,
(2003) 11 SCC 1], State of Orissa v. Mohd. Illiyas [State of Orissa v.
1102 SUPREME COURT REPORTS [2023] 11 S.C.R.
Mohd. Illiyas, (2006) 1 SCC 275 : 2006 SCC (L&S) 122 : AIR 2006
SC 258] and Uniworth Textiles Ltd. v. CCE [Uniworth Textiles Ltd.
v. CCE, (2013) 9 SCC 753].)”
(Emphasis supplied)
55. The aforesaid decision also holds as under:—
“11. The contempt jurisdiction conferred on to the law courts power to
punish an offender for his wilful disobedience/contumacious conduct
or obstruction to the majesty of law, for the reason that respect and
authority commanded by the courts of law are the greatest guarantee
to an ordinary citizen that his rights shall be protected and the entire
democratic fabric of the society will crumble down if the respect of
the judiciary is undermined. Undoubtedly, the contempt jurisdiction is
a powerful weapon in the hands of the courts of law but that by itself
operates as a string of caution and unless, thus, otherwise satisfied
beyond reasonable doubt, it would neither be fair nor reasonable for
the law courts to exercise jurisdiction under the Act. The proceedings
are quasi-criminal in nature, and therefore, standard of proof required
in these proceedings is beyond all reasonable doubt. It would rather
be hazardous to impose sentence for contempt on the authorities in
exercise of the contempt jurisdiction on mere probabilities. (Vide V.G.
Nigam v. Kedar Nath Gupta [V.G. Nigam v. Kedar Nath Gupta, (1992)
4 SCC 697 : 1993 SCC (L&S) 202 : (1993) 23 ATC 400], Chhotu Ram
v. Urvashi Gulati [Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530
: 2001 SCC (L&S) 1196], Anil Ratan Sarkar v. Hirak Ghosh [Anil
Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21], Bank of Baroda v.
Sadruddin Hasan Daya [Bank of Baroda v. Sadruddin Hasan Daya,
(2004) 1 SCC 360], Sahdeo v. State of U.P. [Sahdeo v. State of U.P.,
(2010) 3 SCC 705 : (2010) 2 SCC (Cri) 451] and National Fertilizers
Ltd. v. Tuncay Alankus [National Fertilizers Ltd. v. Tuncay Alankus,
(2013) 9 SCC 600 : (2013) 4 SCC (Civ) 481 : (2014) 1 SCC (Cri)
172].)”
(Emphasis supplied)
56. Hence, the expression or word “wilful” means act or omission
which is done voluntarily or intentionally and with the specific intent to
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1103
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
do something which the law forbids or with the specific intent to fail to do
something the law requires to be done, that is to say with bad purpose either
to disobey or to disregard the law. It signifies a deliberate action done with
evil intent or with a bad motive or purpose.
THE TERM “UNDERTAKE”
57.. Black's Law Dictionary, Fifth Edition defines “undertaking” in
the following words:
“A promise, engagement, or stipulation. An engagement by one of the
parties to a contract to the other, as distinguished from the mutual
engagement of the parties to each other. It does not necessarily imply
a consideration. In a somewhat special sense, a promise given in the
course of legal proceedings by a party or his counsel, generally as a
condition to obtaining some concession from the court or the opposite
party. A promise or security in any form.”
58.. In M. v. Home Office and Another reported in (1992) Q.B. 270
: (1992) 2 WLR 73 : (1992) 4 All ER 97, the expression “undertaking” has
been dealt with in the following manner:
“If a party, or solicitors or counsel on his behalf, so act as to convey
to the court the firm conviction that an undertaking is being given,
that party will be bound and it will be no answer that he did not think
that he was giving it or that he was misunderstood.”
(Emphasis supplied)
59. As the entire controversy revolves around the question whether
the statement made by the learned counsel before the High Court was
an undertaking on behalf of his clients and if yes then whether such
undertaking could be said to have been given to the court, we must
look into two decisions on this point; one rendered by the Bombay
High Court and another by the Calcutta High Court. The Bombay High
Court in Bajranglal Gangadhar Khemka and another v. Kapurchand
Ltd. reported in AIR 1950 Bom 336, took notice of a practice wherein
the undertaking would not expressly mention that it was given to the
court but the High Court took cognizance of the fact that the expression
“undertake” had come to acquire through long practice, a technical
1104 SUPREME COURT REPORTS [2023] 11 S.C.R.
meaning. The High Court speaking through M.C. Chagla, C.J., made the
following observations:
“…. The clause does not state to whom the undertaking is given,
and it may be that it would be possible to hold that, as the parties were
settling the dispute between themselves, the undertaking was given by
one party to the other; or, at the highest, the only thing that could be
urged would be that the expression is ambiguous, and in a contempt
matter, unless the Court is clearly satisfied that the undertaking was
given to the Court, the Court would not proceed to commit the person
in default to jail. But, in our opinion, the expression “undertake”
has come to acquire, through long practice, a technical meaning.
In all orders and decrees of the Court, whenever the expression “a
party undertakes” has been used, it has always borne the meaning
that the undertaking has been to the Court. The Advocate General
has also referred us to the forms and orders that appear in “Seton
on Decrees and Orders”, and in those forms the expression used has
always been “a party undertake” and never “a party undertakes
to the Court.” Therefore, in English Courts as well, the expression
“a party undertakes” when used in decrees or orders has come to
acquire the same technical meaning. What is more, it has been held
by Bhagwati J. — an opinion with which I entirely agree—that it has
been the long-standing practice on the original side that, whenever
counsel wishes to give an undertaking to the Court, he never expressly
uses the words “to the Court” but merely states that he undertakes
on behalf of his client, and that undertaking is always understood to
be an undertaking to the Court which could be enforced by committal
proceedings….”
(Emphasis supplied)
60. The contrary view was taken by Harris, C.J., of the Calcutta High
Court in Nisha Kanto Roy Chowdhuri v. Smt. Saroj Bashini Goho reported
in AIR 1948 Cal 294. It was expressedthat if the court had considered that
the expression "undertaking" had come to acquire a technical meaning and
if he had considered that aspect of the case, he would not have come to the
conclusion that the only way to construe the expression 'undertaking' was
to give it its plain natural meaning. Three judgments of the Calcutta High
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1105
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
Court, all delivered by Single Judges, undoubtedly, were noticed which have
taken the view that an "undertaking" means an "undertaking to the court."
Another Division Bench of the Calcutta High Court in Chhaya Debi v.
Lahoriram Prashar, (1962-63) 67 CWN 819 considered the aforesaid two
cases and construing the decree in that case held that the undertaking given
by the opposite party was an undertaking given to court and the opposite
party always understood the undertaking as one given to the court. The
decree in terms of the settlement had only recorded that the opposite party
"gives an undertaking to the effect that he would quit."
61. This Court in Rama Narang (supra) while referring to the
Contempt of Courts Act, 1952, had noticed that it did not contain many of
the provisions of the Act 1971 for the Legislature had left formulation of
the law of contempt to the Courts, which had resulted in conflicting views
expressed by different High Courts. Reference was made to the conflicting
view expressed by the Calcutta High Court in Nisha Kanto Roy (supra)
and the Bombay High Court in Bajranglal Gangadhar Khemka (supra).
In the former case, it was held that a compromise decree passed by the
Court containing an undertaking was nothing more than an agreement of
the parties with the sanction of the Court super-added. The order passed by
the Court cannot mean anything more than an agreement and had no greater
sanctity than the agreement itself. Per contra, the Bombay High Court, in
Bajranglal Gangadhar Khemka (supra) had drawn a distinction between
the execution proceedings and proceedings for contempt which arise from
wilful default of an undertaking. The judgment referred to the long-standing
practice as per which the expression “undertaking” had come to acquire a
technical and legal meaning and understanding. It was observed that the
expression “when a party undertakes” is used to give an undertaking to the
Court as distinct from when a counsel states that he undertakes on behalf
of his client. When a person gives an undertaking to the Court, it is not
given to the other side but to the Court itself, and that being said must carry
sanctity. Therefore, when a Court passes a decree after an undertaking was
embodied in the consent terms, it would show that the Court had sanctioned
the particular course and put its imprimatur on the consent terms. This Court
agreed with the view expressed in Bajranglal Gangadhar Khemka (supra)
in preference over the view expressed in by the Calcutta High Court in Nisha
Kanto Roy (supra). Thereafter, reference was made to Sanyal Committee
1106 SUPREME COURT REPORTS [2023] 11 S.C.R.
report, which had preceded framing of the enactment of the Act 1971 and
thereupon interpreting Section 2(b) of the Act 1971, this Court in Rama
Narang (supra)had observed:—
“18. The Act has been duly widened. It provides inter alia for
definitions of the terms and lays down firmer bases for exercise of the
court's jurisdiction in contempt. Section 2(b) of the Contempt of Courts
Act, 1971 defines civil contempt as meaning “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”. (emphasis supplied)
Analysed, the definition provides for two categories of cases, namely,
(1) wilful disobedience to a process of court, and (2) wilful breach of an
undertaking given to a court. As far as the first category is concerned,
the word “any” further indicates the wide nature of the power. No
distinction is statutorily drawn between an order passed after an
adjudication and an order passed by consent. This first category is
separate from the second and cannot be treated as forming part of
or taking colour from the second category. The legislative intention
clearly was to distinguish between the two and create distinct classes
of contumacious behaviour. Interestingly, the courts in England have
held that the breach of a consent decree of specific performance by
refusal to execute the agreement is punishable by way of proceedings
in contempt (see C.H. Giles and Co. Ltd. v. Morris [(1972) 1 All ER
960 : [1972] 1 WLR 307 (Ch D)]).”.
(Emphasis supplied)
62. Thus, it is evident that Section 2(b) of the Act, which defines
civil contempt, consists of two different parts and categories, namely, (i)
wilful disobedience to any judgment, decree, direction, order, writ or other
process of a court or (ii) wilful breach of an undertaking given to a court.
The expression “any” used with reference to the first category indicates the
wide nature of power given to the Court and that the statute does not draw
a difference between an order passed after adjudication or an order passed
by consent. The first part or category is distinct and cannot be treated as
a part or taking colour from the second category. This Court consciously
observed that the Courts in England have held that the breach of consent
decree of performance by refusal to execute an agreement was punishable
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1107
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
by way of contempt proceedings. With reference to the second part, in Rama
Narang (supra) it was observed that giving of an undertaking is distinct
from a consent order recording compromise. In the latter case of violation
of compromise, no question of contempt arises, but the party can enforce
the order of compromise either by execution or injunction from a Court.
However, in the former case, when there is wilful disobedience, contempt
application and proceedings would be maintainable. [See: Suman Chadha
and Another v. Central Bank of India reported in 2018 SCC OnLine Del
11536]
63. As held by the Delhi High Court in Suman Chadha (supra), in case
of reasonable doubtit is not fair and reasonable for the Courts to exercise
jurisdiction under the Act for the proceedings are quasi-criminal in nature and
the standard of proof required in these proceedings is beyond all reasonable
doubt and not mere probabilities. Thus, in cases where two interpretations
of an order are possible and if the action is not contumacious, contempt
proceedings are not maintainable and for this purpose the order must be
read in entirety. The court noted that there is a difference between “standard
of proof” and “manner of proof” in contempt proceedings. Contempt
proceedings are sui generis in the sense that strict law of evidence and Code
of Criminal Procedure, 1973 are not applicable. However, the procedure
adopted in the contempt proceedings must be fair and just.
64. The Delhi High Court decision in Suman Chadha (supra) referred
to above, was challenged before this Court. The decision of this Court is
reported in Suman Chadha v. Central Bank of India reported in AIR 2021
SC 3709, wherein this Court made important observations in paras 25 and
26 respectively. Paras 25 and 26 read thus:
“25. It is true that an undertaking given by a party should be seen in
the context in which it was made and (i) the benefits that accrued to
the undertaking party; and (ii) the detriment/injury suffered by the
counter party. It is also true that normally the question whether a
party is guilty of contempt is to be seen in the specific context of the
disobedience and the wilful nature of the same and not on the basis
of the conduct subsequent thereto. While it is open to the court to
see whether the subsequent conduct of the alleged contemnor would
tantamount to an aggravation of the contempt already committed, the
1108 SUPREME COURT REPORTS [2023] 11 S.C.R.
very determination of an act of contempt cannot simply be based upon
the subsequent conduct.
26. But the subsequent conduct of the party may throw light upon
one important aspect namely whether it was just the inability of the
party to honour the commitment or it was part of a larger design to
hoodwink the court.”
65. In Rita Markandey v. Surjit Singh Arora reported in (1996) 6
SCC 14, it was observed that even if parties have not filed an undertaking
before the court but if the court was induced to sanction a particular course
of action or inaction on the representation made by a party and the court
ultimately finds that the party never intended to act on the said representation
or such representation was false, the party would be guilty of committing
contempt. It was observed:—
“12. Law is well settled that if any party gives an undertaking to the
court to vacate the premises from which he is liable to be evicted under
the orders of the court and there is a clear and deliberate breach
thereof it amounts to civil contempt but since, in the present case, the
respondent did not file any undertaking as envisaged in the order of
this Court the question of his being punished for breach thereof does
not arise. However, in our considered view even in a case where no
such undertaking is given, a party to a litigation may be held liable
for such contempt if the court is induced to sanction a particular
course of action or inaction on the basis of the representation of such
a party and the court ultimately finds that the party never intended to
act on such representation or such representation was false. In other
words, if on the representation of the respondent herein the Court was
persuaded to pass the order dated 5-10-1995 extending the time for
vacation of the suit premises, he may be held guilty of contempt of
court, notwithstanding non-furnishing of the undertaking, if it is found
that the representation was false and the respondent never intended
to act upon it. …"
(Emphasis supplied)
66. Thus, even if we were to assume that the learned counsel had not
given any “undertaking” to the court upon instructions from his clients,
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1109
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
the observations made in Rita Markandey (supra), are significant and refer
to another facet when contempt jurisdiction can be invoked, different and
distinct from cases where parties have given undertaking to the court and
have thereafter wilfully refused to abide and comply with the same.
67. In Govind Kaur v. Hardev reported in 1982 (1) RCR 323 (13), a
question arose before a Division Bench of the Rajasthan High Court whether
the tenant was guilty of the contempt of Court. On March 13, 1980 when
the judgment was pronounced the counsel for the tenant made a request to
Court for grant of time to vacate shop No. 6. She was granted time of two
months. She undertook to deliver vacant possession of shop No. 6 to the
landlord on or before the expiry of two months from that day. It was held:—
“…This cannot be said to be an arrangement by way of agreement
between the parties for vacating shop No. 6. It is an undertaking to the
Court. An undertaking is a promise, given to the Court by a party to a
proceeding, to do or not to do particular thing, which is enforceable as
an injunction because when the Court accepts an undertaking given by
a party, its order amounts in substance to an injunction. An undertaking
given to the court by a person or a Corporation in pending proceedings
on the faith of which the court sanctions a particular course of action
or inaction, has the same force as an injunction made by the Court
and breach of the undertaking is misconduct amounting to contempt.
An ‘undertaking given to the Court’ should be distinguished from a
consent order, or what is known as an order passed on a compromise
petition filed by the parties in a civil proceedings. A consent order is
a mere agreement between the parties, even though the Court might
record it and append its order thereto and in case of the failure of a
party to comply with the terms of a consent order, the injured party
cannot apply for committing the defaulter for contempt; his remedy
is by way of specific performance or injunction. However, when a
party secures an order from the court on giving an undertaking to
the Court that he will take a particular course of action or inaction,
such undertaking itself operates as an injunction made by the Court
because the Court has made its order on the faith of the undertaking,
e.g., stay of execution of the decree or order.”
(Emphasis supplied)
1110 SUPREME COURT REPORTS [2023] 11 S.C.R.
68. The Court then expressed that they were definitely of the opinion
that it was an unconditional and unqualified undertaking to the court even
though the words to that effect were not used either in the statement or
order of the Court.
69. Thus, the expression a party “undertakes” or “gives a solemn
promise” or “it is stated at the Bar on instructions from clients that the
property shall not be sold”used in the statements of the parties or their
counsel or in the orders and decrees of the court, unless the context otherwise
suggests, means an implied undertaking to the court. The undertaking is
always understood to be an undertaking to the court, which undertaking
could be enforced by committal proceedings.
70. We go back to the order passed by the learned Single Judge of the
High Court dated 14.10.2015 in the Civil Application No. 11412 of 2015
in Special Civil Application No. 16266 of 2013, recording the assurance/
undertaking given by the learned counsel on instructions from his clients
that the property with respect to the subject matter of the disputed entry
would not be sold till the disposal of the main petition. The order reads thus:
“It is stated at the Bar by Mr. Sanjanwala learned senior advocate,
on instructions from his clients, that the property qua the subject
matter of this entry and the petition, shall not be sold out till the main
petition is heard and decided, which satisfies the conscious of Mr.
Mihir Thakor learned senior advocate appearing with Mr. Prabhav
Mehta learned advocate and he states that he may not press the Letters
Patent Appeal, on instructions. Hence, this Civil Application stands
disposed of accordingly. It goes without saying that the order was
passed adinvitum/by consent of the learned advocates.”
(Emphasis supplied)
71. Having regard to the principles of law as aforestated, it will be too
much for this Court to say that the statement made by the learned Senior
Counsel before the High Court was just an assurance given to a party to
the lis and was not an undertaking given to the court so as to entail the
consequences of “civil contempt”.
72. It is true that every undertaking given by a party to a litigation
may not be an undertaking to the court; there is a difference between an
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1111
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
undertaking given to the other party and an undertaking given to the court.
The breach of an undertaking given to the other party may not constitute
the contempt of court. However, whether a particular undertaking is an
undertaking to the court or to the opposite party must depend upon the facts
and circumstances of each case and the language used. In the case on hand,
it is not the case of the appellants that they had negotiated a settlement with
the other side outside the court and reported the same to the High Court and
the High Court proceeded to pass the order incorporating the undertaking
given by the learned counsel upon instructions from the clients. Even if
the parties, had negotiated a settlement outside the court and reported the
same to the court and the court would have passed an order, in terms of such
understanding, there would be no scope to warrant that the undertaking was
not given to the court.
73. An undertaking or an assurance given by a lawyer based upon
which the court decides upon a particular course of action would definitely
fall within the confines of “undertaking” as stipulated under Section 2(b)
of the Act 1971 and the breach of which would constitute “civil contempt”.
As held in M. v. Home (supra) relied upon by this Court in Rama Narang
(supra) that if a party or solicitor or counsel on his behalf, so as to convey
to the court a firm conviction that an undertaking is being given, that party
will be bound and it will be no answer that he did not think that he was
giving it or that he was misunderstood. The breach of an undertaking given
to a court by a person in a pending proceeding on the faith of which the
court sanctions a particular course of action is misconduct amounting to
contempt.
74. In our view, the High Court was justified in saying while holding
the appellants guilty of civil contempt that but for the undertaking, the
respondents in the Special Civil Application No. 16266 of 2013 who were
the appellants in the LPA (Stamp) No.1196 of 2015 (respondents before this
Court) would not have withdrawn the appeal as not pressed.
75. The High Court is right in saying that it is this undertaking given to
the court on 14.10.2015 that persuaded the respondents herein to withdraw
the said appeal and it is such solemn assurance given to the court which per
forced them to withdraw the appeal by recording the statement made by the
learned Senior Counsel appearing on behalf of the contemnors.
1112 SUPREME COURT REPORTS [2023] 11 S.C.R.
76. Thus, the wilful breach of an assurance in the form of an undertaking
given by a counsel /advocate on behalf of his client to the court would amount
to “civil contempt” as defined under Section 2(b) of the Act 1971.
77. We are also of the view, having regard to all the facts on record
that the undertaking in the case on hand could be said to have been given
to the court.
78. The first and the second question formulated by us are answered
accordingly.
ARE CONTEMPTUOUS TRANSACTIONS VOID?
79. We now proceed to answer the third question formulated by us
as regards the power of the contempt court to declare any contemptuous
transaction non est or void.
80. A Three-Judge Bench of this Court in the case of State Bank of
India and Others v. Dr. Vijay Mallya reported in 2022 SCC Online SC
826, in clear terms said that apart from punishing the contemnor for his
contumacious conduct, the majesty of law may demand that appropriate
directions be issued by the Court so that any advantage secured as a result
of such contumacious conduct is completely nullified. The approach may
require the Court to issue directions either for reversal of the transactions
in question by declaring said transactions to be void or passing appropriate
directions to the concerned authorities to see that the contumacious conduct
on the part of the contemnor does not continue to enure to the advantage of
the contemnor or anyone claiming under him.
81. It would be pertinent, in this context, to refer to the decision of the
Chancery Division in Clarke and othersv. Chadburn and others reported
in (1985) 1 All ER 211, wherein it was held that an act done in wilful
disobedience of an injunction or court order is not only a contempt of court,
but also an illegal and invalid act which could not, therefore, effect any
change in the rights and liabilities of others. Similar view was expressed by
this Court in Satyabrata Biswas and Others v. Kalyan Kumar Kisku and
Others reported in (1994) 2 SCC 266, wherein the contempt jurisdiction was
invoked by the respondents against the appellants, and during the contempt
proceedings, it transpired that a sub tenancy was created while the status
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1113
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
quo order was in operation. This Court held that creation of sub-tenancy
was in violation of the status quo order and parties were relegated to the
position as existed on the date of the status quo order. This Court, interalia,
observed thus:
“23. … Such an order cannot be circumvented by parties with impunity
and expect the court to confer its blessings. It does not matter that
to contempt proceedings Somani Builders was not a party. It cannot
gain advantage in derogation of the rights of the parties, who were
litigating originally. If the right of sub-tenancy is recognised, how is
status quo as of 15.9.1988 maintained? Hence, the grant of sublease
is contrary to the order of status quo. Any act done in the teeth of the
order of status quo is clearly illegal. All actions including the grant
of sub-lease are clearly illegal.”.
(Emphasis supplied)
82. We are aware of the two decisions of this Court one in the case of
Thomson Press (India) Limited v. Nanak Builders and Investors Private
Limited and Others reported in (2013) 5 SCC 397 and T. Ravi (supra). In
both these decisions, the view taken is that Section 52 of the Transfer of
Property Act, 1882 (for short, “the Act 1882”) does not render transfers
affected during the pendency of the suit void but only render such transfers
subservient to the rights as may be eventually determined by the court.
83. In Thomson Press (supra), T.S. Thakur, J. in his separate judgment
while supplementing the judgment authored by M.Y. Eqbal, J., observed
as under:
“53. There is, therefore, little room for any doubt that the transfer
of the suit property pendente lite is not void ab initio and that the
purchaser of any such property takes the bargain subject to the rights
of the plaintiff in the pending suit. Although the above decisions
do not deal with a fact situation where the sale deed is executed in
breach of an injunction issued by a competent court, we do not see
any reason why the breach of any such injunction should render the
transfer whether by way of an absolute sale or otherwise ineffective.
The party committing the breach may doubtless incur the liability
to be punished for the breach committed by it but the sale by itself
1114 SUPREME COURT REPORTS [2023] 11 S.C.R.
may remain valid as between the parties to the transaction subject
only to any directions which the competent court may issue in the
suit against the vendor.”
(Emphasis supplied)
84. Thomson Press (supra) referred to above has been relied upon in
T. Ravi (supra) for the proposition that the effect of Section 52 of the Act
1882 is not to render transfers effected during the pendency of a suit by a
party to the suit void; the transfer remains valid subject, of course, to the
result of the suit. The pendente lite purchaser would be entitled to or suffer
the same legal rights and obligations of his vendor as may be eventually
determined by the Court.
85. This Court in Delhi Development Authority v. Skipper
Construction Co. (P) Ltd. and Another reported in (1996) 4 SCC 622,
held that the legal consequences of what has been done in breach of or in
violation of the order of stay or injunction should be undone and the parties
could be put back to the same position as they stood immediately prior to
such order of stay or injunction to not let the defaulting party enjoy any
undue advantage. This Court while relying upon cases decided by various
High Courts held as under:
“The contemner should not be allowed to enjoy or retain the fruits
of his contempt
××× ××× ×××
18. The above principle has been applied even in the case of violation
of orders of injunction issued by civil courts. In Clarke v. Chadburn
[(1985) 1 All ER 211] Sir Robert Megarry V-C observed:
“I need not cite authority for the proposition that it is of high
importance that orders of the court should be obeyed. Wilful
disobedience to an order of the court is punishable as a contempt
of court, and I feel no doubt that such disobedience may properly
be described as being illegal. If by such disobedience the persons
enjoined claim that they have validly effected some charge in the
rights and liabilities of others, I cannot see why it should be said
that although they are liable to penalties for contempt of court for
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1115
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
doing what they did, nevertheless those acts were validly done. Of
course, if an act is done, it is not undone merely by pointing out
that it was done in breach of the law. If a meeting is held in breach
of an injunction, it cannot be said that the meeting has not been
held. But the legal consequences of what has been done in breach
of the law may plainly be very much affected by the illegality. It
seems to me on principle that those who defy a prohibition ought
not to be able to claim that the fruits of their defiance are good,
and not tainted by the illegality that produced them.”
19. To the same effect are the decisions of the Madras and Calcutta
High Courts in Century Flour Mills Ltd. v. S. Suppiah [AIR 1975 Mad
270 : (1975) 2 MLJ 54] and Sujit Pal v. Prabir Kumar Sun [AIR 1986
Cal 220 : (1986) 90 CWN 342]. In Century Flour Mills Ltd. [AIR
1975 Mad 270 : (1975) 2 MLJ 54] it was held by a Full Bench of the
Madras High Court that where an act is done in violation of an order
of stay or injunction, it is the duty of the court, as a policy, to set the
wrong right and not allow the perpetuation of the wrongdoing. The
inherent power of the court, it was held, is not only available in such
a case, but it is bound to exercise it to undo the wrong in the interest
of justice. That was a case where a meeting was held contrary to an
order of injunction. The Court refused to recognise that the holding of
the meeting is a legal one. It put back the parties in the same position
as they stood immediately prior to the service of the interim order.
20. In Sujit Pal [AIR 1986 Cal 220 : (1986) 90 CWN 342] a Division
Bench of the Calcutta High Court has taken the same view. There, the
defendant forcibly dispossessed the plaintiff in violation of the order
of injunction and took possession of the property. The Court directed
the restoration of possession to the plaintiff with the aid of police. The
Court observed that no technicality can prevent the court from doing
justice in exercise of its inherent powers. It held that the object of Rule
2-A of Order 39 will be fulfilled only where such mandatory direction
is given for restoration of possession to the aggrieved party. This was
necessary, it observed, to prevent the abuse of process of law.
21. There is no doubt that this salutary rule has to be applied and given
effect to by this Court, if necessary, by overruling any procedural or
1116 SUPREME COURT REPORTS [2023] 11 S.C.R.
other technical objections. Article 129 is a constitutional power and
when exercised in tandem with Article 142, all such objections should
give way. The court must ensure full justice between the parties before
it.”
(Emphasis supplied)
86. This Court in Vidur Impex and Traders Private Limited and
Others v. Tosh Apartments Private Limited and Others reported in (2012)
8 SCC 384, while deciding on a similar factual scenario held that the sale
transactions conducted in teeth of the injunction passed by the Delhi High
Court did not have any legal basis. This Court held as under:
“42. … At the cost of repetition, we consider it necessary to mention
that Respondent 1 had filed suit for specific performance of agreement
dated 13-9-1988 executed by Respondent 2. The appellants and
Bhagwati Developers are total strangers to that agreement. They came
into the picture only when Respondent 2 entered into a clandestine
transaction with the appellants for sale of the suit property and
executed the agreements for sale, which were followed by registered
sale deeds and the appellants executed agreement for sale in favour
of Bhagwati Developers. These transactions were in clear violation
of the order of injunction passed by the Delhi High Court which had
restrained Respondent 2 from alienating the suit property or creating
third-party interest. To put it differently, the agreements for sale and
the sale deeds executed by Respondent 2 in favour of the appellants
did not have any legal sanctity. The status of the agreement for sale
executed by the appellants in favour of Bhagwati Developers was
no different. These transactions did not confer any right upon the
appellants or Bhagwati Developers. Therefore, their presence is not at
all necessary for adjudication of the question whether Respondents 1
and 2 had entered into a binding agreement and whether Respondent 1
is entitled to a decree of specific performance of the said agreement. ….
(Emphasis supplied)
87. The decision of Vidur Impex (supra) was relied upon by this Court
in the case of Jehal Tanti and Others v. Nageshwar Singh (Dead) THR.
LRS. reported in AIR 2013 SC 2235, wherein it was held that:
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1117
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
“13. We may also notice Section 23 of the Contract Act, 1872, which
lays down that:
“23. What considerations and objects are lawful, and what
not.—The consideration or object of an agreement is lawful,
unless—
it is forbidden by law; or
is of such a nature that, if permitted, it would defeat the
provisions of any law; or
is fraudulent; or
involves or implies injury to the person or property of
another; or the court regards it as immoral, or opposed
to public policy.”
In each of these cases, the consideration or object of an agreement
is unlawful and every agreement executed with such an object or
consideration which is unlawful is void. Since the sale deed was
executed in favour of Respondent 1 in the teeth of the order of injunction
passed by the trial court, the same appears to be unlawful..
(Emphasis supplied)
88. Thus, although Section 52 of the Act 1882 does not render a transfer
pendente lite void yet the court while exercising contempt jurisdiction may
be justified to pass directions either for reversal of the transactions in question
by declaring the said transactions to be void or proceed to pass appropriate
directions to the concerned authorities to ensure that the contumacious
conduct on the part of the contemnor does not continue to enure to the
advantage of the contemnor or anyone claiming under him.
89. The High Court declared all the sale deeds executed by the
contemnors in favour of the purchasers as non est. The High Court ordered
that the sale deeds stand cancelled and set aside. The contemnors were
directed to restore the position which was prevailing at the time of the order
dated 14.10.2015 passed by the High Court. In our opinion, the High Court
was fully justified in declaring the sale deeds as non est or void.
1118 SUPREME COURT REPORTS [2023] 11 S.C.R.
IMPLEADMENT OF PURCHASERS AS NECESSARY PARTIES
90. We now proceed to answer the question whether the clients of
Mr. Shyam Divan i.e., purchasers should have been impleaded as party
respondents in the contempt proceedings before the High Court and whether
they should have been heard before passing the final order.
91. In the case of Satyabrata Biswas (supra), it was held that no
person can gain an advantage in derogation of rights of the parties. In the
said matter an order was passed, directing the parties to maintain status quo
with respect to the disputed property. The appellant therein however, acted in
contempt and created a sub-tenancy in favour of one Somani Builders, who
was not made a party to the contempt proceedings before the High Court.
Somani Builders contended that they should have been made a party to the
proceedings as they possessed a right in the disputed property. This Court
rejected the said contention and observed as under:
“23. … It is no use contending as Mr. Chidambaram, learned counsel
for the respondents does, that there was a bar to such a sublease
under the terms of the status quo order. It has the effect of violating
the preservation of status of the property. This will all the more be so
when this is done without the leave of the court to disturb the state of
things as they then stood. It would amount to violation of the order.
The principle contained in the maxim ‘actus curiae neminem gravabit’
has no application at all to the facts of this case when in violation
of status quo order a sub-tenancy has been created. Equally, the
contention that even a trespasser cannot be evicted without recourse
to law is without merit, because the state of affairs in relation to
property as on September 15, 1988 is what the court is concerned
with. Such an order cannot be circumvented by parties with impunity
and expect the court to confer its blessings. It does not matter that to
the contempt proceedings Somani Builders was not a party. It cannot
gain an advantage in derogation of the rights of the parties, who were
litigating originally. If the right of sub-tenancy is recognised, how is
status quo as of September 15, 1988 maintained? Hence, the grant
of sublease is contrary to the order of status quo. Any act done in the
teeth of the order of status quo is clearly illegal. All actions including
the grant of sublease are clearly illegal.
(Emphasis supplied)
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1119
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
92. The Division Bench of the Gujarat High Court while referring to
Satyabrata Biswas (supra) referred to above In Re: Mafatlal Industries
Ltd.Cross-Objection in O.J. Appeal No. 16 of 1994 in Company Petition
No. 22 of 1994 decided on 12.07.1996, observed as under:
“71. It is of the essence of the rule of law that everyone within the
society is governed by the rule of law and should consider himself
bound by and obey the rule of law. It is fundamental to the system of
polity that India has adopted and which is embodied in the Constitution
that the courts of the land are vested with the powers of interpreting
the law and of applying it to the facts of the cases which are properly
brought before them. When once an order has been passed which the
court has jurisdiction to pass, it is the duty of all persons bound by it to
obey the order so long as it stands, and it would tend to the subversion
of orderly administration and civil government, if parties could disobey
orders with impunity. If disobedience could go unchecked, it would
result in orders of courts ceasing to have any meaning and judicial
power itself becoming a mockery. The right cannot be doubted that
the court is empowered by the statute to issue injunction against the
defendant in appropriate cases in such terms as the court thinks proper.
Machinery has been provided to penalise the person who disobeys
the order which is binding on the person injuncted as a part of the
fundamental rule of law which governs equity. The further question
that is required to be considered is whether the act itself committed in
breach of the order remains unscathed. In our opinion, taking the view
that such a transaction in all circumstances irrespective of binding
circumstance or nature of the order does not affect the transaction
would be encouraging breach of the injunction order by any person
venturing to suffer penalty and would result in cutting at the very roots
of the effective nature of the orders and attainment of the object for
which the courts exist and exercise judicial power.
××× ××× ×××
73. From the above, it is clear that apart from countenancing the
proceedings for contempt for breach of the injunction, the apex
court per-mitted the action to be taken for eviction of the sub-tenant
inducted in possession contrary to the injunction order by declaring
1120 SUPREME COURT REPORTS [2023] 11 S.C.R.
the consequence of creation of sub-tenancy in breach of the injunction
order itself to be illegal conferring no right on the subtenant to remain
in possession. This clear pronouncement of the apex court fortifies the
conclusion which we have reached and plea of the company that, in no
circumstances, the transaction carried on in breach of the injunction
order can be held to be void, cannot be sustained.”
(Emphasis supplied)
93. In Surjit Singh and others etc. etc. v. Harbans Singh and others
reported in AIR 1996 SC 135, this Court considered the question whether a
person to whom the suit property is alienated after passing of the preliminary
decree by the trial court, which had restrained the parties from alienating
or otherwise transferring the suit property, has the right to be impleaded as
a party. The trial court accepted the application filed by the transferees and
the order of the trial court was confirmed by the lower appellate court and
the High Court. While allowing the appeal against the order of the High
Court, this Court observed:
“4. … In defiance of the restraint order, the alienation/assignment was
made. If we were to let it go as such, it would defeat the ends of justice
and the prevalent public policy. When the Court intends a particular
state of affairs to exist while it is in seisin of a lis, that state of affairs
is not only required to be maintained, but it is presumed to exist till
the Court orders otherwise. The Court, in these circumstances has the
duty, as also the right, to treat the alienation/assignment as having not
taken place at all for its purposes. Once that is so, Pritam Singh and his
assignees, respondents herein, cannot claim to be impleaded as parties
on the basis of assignment. Therefore, the assignees-respondents could
not have been impleaded by the trial Court as parties to the suit, in
disobedience of its orders.”
(Emphasis supplied)
94. In Sarvinder Singh v. Dalip Singh and Others reported in (1996)
5 SCC 539, this Court considered the question whether the respondent
therein who had purchased the property during the pendency of a suit for
declaration filed by the appellant on the basis of a registered will executed
by his mother was entitled to be impleaded as party and observed:
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1121
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
“5. … The respondents indisputably cannot challenge the legality or
the validity of the Will executed and registered by Hira Devi on 26-
5-1952. Though it may be open to the legal heirs of Rajender Kaur,
who was a party to the earlier suit, to resist the claim on any legally
available or tenable grounds, those grounds are not available to the
respondents. Under those circumstances, the respondents cannot,
by any stretch of imagination, be said to be either necessary or
proper parties to the suit. A necessary party is one whose presence
is absolutely necessary and without whose presence the issue cannot
effectually and completely be adjudicated upon and decided between
the parties. A proper party is one whose presence would be necessary
to effectually and completely adjudicate upon the disputes. In either
case the respondents cannot be said to be either necessary or proper
parties to the suit in which the primary relief was found on the basis
of the registered Will executed by the appellant's mother, Smt Hira
Devi. Moreover, admittedly the respondents claimed right, title and
interest pursuant to the registered sale deeds said to have been
executed by the defendants-heirs of Rajender Kaur on 2-12-1991 and
12-12-1991, pending suit.
6. Section 52 of the Transfer of Property Act envisages that:
“During the pendency in any court having authority within
the limits of India … of any suit or proceeding which is not
collusive and in which any right to immovable property is
directly and specifically in question, the property cannot be
transferred or otherwise dealt with by any party to the suit or
proceeding so as to affect the rights of any other party thereto
under the decree or order which may be made therein, except
under the authority of the court and on such terms as it may
impose.”
It would, therefore, be clear that the defendants in the suit were
prohibited by operation of Section 52 to deal with the property and
could not transfer or otherwise deal with it in any way affecting the
rights of the appellant except with the order or authority of the court.
Admittedly, the authority or order of the court had not been obtained
for alienation of those properties. Therefore, the alienation obviously
1122 SUPREME COURT REPORTS [2023] 11 S.C.R.
would be hit by the doctrine of lis pendens by operation of Section 52.
Under these circumstances, the respondents cannot be considered to
be either necessary or proper parties to the suit.
(Emphasis supplied)
95. This Court in Bibi Zubaida Khatoon v. Nabi Hassan Saheb
and Another reported in (2004) 1 SCC 191, was called upon to consider
whether the High Court's order, which had declined to interfere with the
order passed by the trial court dismissing the applications filed by the
appellant for impleadment as party to the cross suits of which one was filed
for redemption of mortgage and the other was filed for specific performance
of the agreement for sale, was correct. While dismissing the appeal, this
Court referred to the judgments in Sarvinder Singh (supra) and Dhurandhar
Prasad Singh v. Jai Prakash Universityand Others reported in (2001) 6
SCC 534, and observed that:
“10. … There is no absolute rule that the transferee pendente lite
without leave of the court should in all cases be allowed to join and
contest the pending suits. …”
(Emphasis supplied)
96. We may also be pertinent to refer to and rely upon the decision
in D.N. Taneja v. Bhajan Lal reported in (1988) 3 SCC 26, whereunder it
was held that in contempt proceedings there are only two parties, i.e., the
court and the contemnor. This Court held as under:
“12. … A contempt is a matter between the court and the alleged
contemnor. Any person who moves the machinery of the court
for contempt only brings to the notice of the court certain facts
constituting contempt of court. After furnishing such information he
may still assist the court, but it must always be borne in mind that in
a contempt proceeding there are only two parties, namely, the court
and the contemnor. It may be one of the reasons which weighed with
the legislature in not conferring any right of appeal on the petitioner
for contempt. The aggrieved party under Section 19(1) can only be the
contemnor who has been punished for contempt of court.”
(Emphasis supplied)
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1123
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
97. Thus, from the aforesaid, it is evident that it was not necessary for
the High Court to implead the purchasers in the contempt proceedings. In
fact, we may go to the extent of observing having regard to the facts of the
case that the purchasers were quietly watching the proceedings. It is not as
if they were not aware of what was happening however, when things went
wrong, they now cry foul of not being impleaded as parties and heard by
the High Court. We are also not prepared to believe that even while the sale
transactions were being effected they were not aware of the undertaking
given before the High Court that the properties would not be sold till the
final disposal of the main matter.
CONCEPT OF APOLOGY
98. We must refer to Section 12 of the Act 1971:
“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 it 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 may think fit.
1124 SUPREME COURT REPORTS [2023] 11 S.C.R.
(4) Where the person found guilty of contempt of court in respect
of any undertaking given to a court is a company, every person
who, at the time the contempt was committed, was in charge of,
and was responsible to, the company for the conduct of business
of the company, as well as the company, shall be deemed to be
guilty of the contempt and the punishment may be enforced, with
the leave of the court, by the detention in civil prison of each
such person:
Provided that nothing contained in this sub-section shall render
any such person liable to such punishment if he proves that
the contempt was committed without his knowledge or that he
exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4), where the
contempt of court referred to therein has been committed by a
company and it is proved that the contempt has been committed
with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manager, secretary or other
officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of the contempt and the
punishment may be enforced, with the leave of the court, by the
detention in civil prison of such director, manager, secretary or
other officer.
Explanation.—For the purposes of sub-sections (4) and (5),—
(a) “company” means any body corporate and includes a firm
or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the
firm.”
99. Section 12 of the Act 1971 provides for the punishment of
contempt. Proviso to this section states that the accused may be discharged
or the punishment awarded may be remitted on the apology being made
to the satisfaction of the court. Explanation to this says that the apology
shall not be rejected merely on the ground that it is qualified or conditional,
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1125
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
if the accused makes it bona fide. Therefore, what is requirement of the
provision is that the apology which is either qualified or conditional made
by the alleged contemner shall also be not discarded if the same in the
opinion of the court is made bona fide. It is the discretion of the court
whether to accept the same or not and that discretion is required to be
exercised judiciously and the accused can be discharged. For preventing
interference in the course of justice and to upkeep the authority of law,
sparingly, of course, such power contemplated under the constitution
warrant its use.
100. We now proceed to consider the question as regards the acceptance
of apology. It is pertinent to note at this stage that all throughout the
proceedings before the High Court, the stance of the appellants was that they
committed a big mistake by executing the sale deeds despite having given a
clear-cut undertaking to the court that they would not do so. By and large,
from the averments in the various affidavits filed by the appellants over a
period of time; referred to by the High Court in its judgment, the stance had
been that the appellants should not have defied the order of the High Court
and are extremely sorry in that regard. In such circumstances, the appellants
pleaded before the High Court that their apology may be accepted and they
may be discharged from the proceedings.
101. We may take judicial notice of the fact with all humility at our
command that over a period of time, the courts have shown undue leniency
and magnanimity towards the contemnors. This lenient attitude shown by
the courts over a period of time has actually emboldened unscrupulous
litigants to disobey or commit breach of the order passed by any court or
any undertaking given to the court with impunity.
102. The litigants, proceeded for contempt of court have realised
that they have a very potent weapon in their hands in the form of apology.
Take for instance, the present case itself. What do the appellants want
us to do? The appellants want this Court to accept their apology and set
aside the order of punishment and sentence passed by the High Court.
There ought not to be a tendency by courts to show compassion when
disobedience of an undertaking or an order is with impunity and with
total consciousness.
1126 SUPREME COURT REPORTS [2023] 11 S.C.R.
103. In re. Tapan Kumar Mukherjee v. Heromoni Mondal and
Another reported in (1991) 1 SCC 397, this Court in a contempt matter
has observed:—
“9.… we should like to put out a warning that where a case of wilful
disobedience is made out, the courts will not hesitate and will convict
delinquent officer and that no lenience in the court's attitude should
be expected from the court as a matter of course merely on the ground
that an order of conviction would damage the service career of the
concerned officer”.
104. In re. Tapan Kumar (supra), this Court was dealing with a public
servant facing an action for contempt.
105. We wonder what could be the ultimate outcome if we accept the
apology and allow the appellants to go scot-free. First, they would have to
face no legal consequences for the alleged act of contempt and secondly,
would continue to enjoy or retain the fruits of their contempt. We say so
because they have already pocketed a sizeable amount towards the sale
consideration obtained from the purchasers.
106. In the case of Sub-Judge,First Class, Hoshangabad v. Jawahar
Lal Ramchand Parwar reported in AIR 1940 Nagpur 407, Justice Bose
(as he then was) said that an apology is not a weapon of defence forged to
purge the guilty of their offences. It is not an additional insult to be hurled
at the heads of those who have been wronged. It is intended to be evidence
of real contriteness, the manly consciousness of a wrong done, of an injury
inflicted, and the earnest desire to make such reparation as lies in the wrong-
doer's power. An apology, which the learned Judge says should be evidence
of real contriteness and manly consciousness of the wrong done; it ceases
to be so if it is belated, and it becomes instead, to borrow the language of
Justice Bose, again the cringing of a coward shivering at the prospect of
the stern hand of justice about to descend upon his head.
107. In the case of Patel Rajnikant Dhulabhai (supra), this Court
rejected the argument that an apology can be used as a weapon of defence
and while relying upon multiple decisions held as under:
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1127
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
“62. In the celebrated decision of Attorney General v. Times Newspaper
Ltd. [(1974) AC 273 : (1973) 3 All ER 54 : (1973) 3 WLR 298 (HL)]
Lord Diplock stated: (All ER p. 71f)
“There is an element of public policy in punishing civil contempt,
since the administration of justice would be undermined if the
order of any court of law could be disregarded with impunity;….”
××× ××× ×××
74. In Hiren Bose, Re [AIR 1969 Cal 1 : 72 Cal WN 82] the High
Court of Calcutta stated: (AIR p. 3, para 13)
“13. … It is also not a matter of course that a Judge can be
expected to accept any apology. Apology cannot be a weapon
of defence forged always to purge the guilty. It is intended to be
evidence of real contrition, the manly consciousness of a wrong
done, of an injury inflicted and the earnest desire to make such
reparation as lies in the wrong-doer's power. Only then is it of
any avail in a court of justice. But before it can have that effect,
it should be tendered at the earliest possible stage, not the latest.
Even if wisdom dawns only at a later stage, the apology should
be tendered unreservedly and unconditionally, before the Judge
has indicated the trend of his mind. Unless that is done, not only
is the tendered apology robbed of all grace but it ceases to be
an apology. It ceases to be the full, frank and manly confession
of a wrong done, which it is intended to be.”
75. It is well settled that an apology is neither a weapon of defence
to purge the guilty of their offence, nor is it intended to operate as a
universal panacea, it is intended to be evidence of real contriteness
(vide M.Y. Shareef v. Hon'ble Judges of the High Court of Nagpur
[AIR 1955 SC 19 : (1955) 1 SCR 757]; M.B. Sanghi v. High Court of
Punjab & Haryana [(1991) 3 SCC 600 : 1991 SCC (Cri) 897 : (1991)
3 SCR 312] ).
76. In T.N. Godavarman Thirumulpad (102) v. Ashok Khot [(2006) 5
SCC 1], a three-Judge Bench of this Court had an occasion to consider
the question in the light of an “apology” as a weapon of defence by
the contemnor with a prayer to drop the proceedings. The Court took
1128 SUPREME COURT REPORTS [2023] 11 S.C.R.
note of the following observations of this Court in L.D. Jaikwal v. State
of U.P. [(1984) 3 SCC 405 : 1984 SCC (Cri) 421] : (Ashok Khot case
[(2006) 5 SCC 1] , SCC p. 17, para 32)
“32. … We are sorry to say we cannot subscribe to the ‘slap—
say sorry—and forget’ school of thought in administration of
contempt jurisprudence. Saying ‘sorry’ does not make the slapper
taken the slap smart less upon the said hypocritical word being
uttered. Apology shall not be paper apology and expression of
sorrow should come from the heart and not from the pen. For it
is one thing to ‘say’ sorry—it is another to ‘feel’ sorry.”
The Court, therefore, rejected the prayer and stated: (SCC p. 17,
para 31)
“31. Apology is an act of contrition. Unless apology is offered at
the earliest opportunity and in good grace, the apology is shorn
of penitence and hence it is liable to be rejected. If the apology
is offered at the time when the contemnor finds that the court
is going to impose punishment it ceases to be an apology and
becomes an act of a cringing coward.”
Similar view was taken in other cases also by this Court.
77. We are also satisfied that the so-called apology is not an act of
penitence, contrition or regret. It has been tendered as a “tactful move”
when the contemnors are in the tight corner and with a view to ward
off the Court. Acceptance of such apology in the case on hand would
be allowing the contemnors to go away with impunity after committing
gross contempt of Court. In our considered opinion, on the facts and in
the circumstances of the case, imposition of fine in lieu of imprisonment
will not meet the ends of justice.”
(Emphasis supplied)
108. This Court in Priya Gupta and Another v. Additional Secretary,
Ministry of Health and Family Welfare and Others reported in (2013) 11
SCC 404, held that:
“7. Tendering an apology is not a satisfactory way of resolving
contempt proceedings. An apology tendered at the very initial stage of
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1129
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
the proceedings being bona fide and preferably unconditional would
normally persuade the court to accept such apology, if this would not
leave a serious scar on the dignity/authority of the court and interfere
with the administration of justice under the orders of the Court.
8. “Bona fide” is an expression which has to be examined in the
context of a given case. It cannot be understood in the abstract.
The attendant circumstances, behaviour of the contemnor and the
remorse or regret on his part are some of the relevant considerations
which would weigh with the Court in deciding such an issue. Where,
persistently, a person has attempted to overreach the process of
Court and has persisted with the illegal act done in wilful violation
to the orders of the Court, it will be difficult for the Court to accept
unconditional apology even if it is made at the threshold of the
proceedings. It is not necessary for us to examine in any greater detail
the factual matrix of the case since the disobedience, manipulation of
procedure and violation of the schedule prescribed under the orders
of the Court is an admitted position. All that we have to examine is
whether the apology tendered is bona fide when examined in the light
of the attendant circumstances and whether it will be in the interest
of justice to accept the same.
9. The facts which will weigh with the Court while considering
acceptance of an apology are the contemptuous conduct, the extent
to which the order of the Court has been violated, irresponsible acts
on the part of the contemnor and the degree of interference in the
administration of justice, which thereby cause prejudice to other
parties. An apology tendered, even at the outset, has to be bona fide
and should be demonstrative of repentance and sincere regret on the
part of the contemnor, lest the administration of justice be crudely
interfered with by a person with impunity. The basic ingredients of
the rule of law have to be enforced, whatever be the consequence
and all persons are under a fundamental duty to maintain the rule
of law. An apology which is not bona fide and has been tendered
to truncate the process of law with the ulterior motive of escaping
the consequences of such flagrant violation of orders of the court
and causes discernible disrespect to the course of administration
1130 SUPREME COURT REPORTS [2023] 11 S.C.R.
of justice, cannot be permitted. The court has to draw a balance
between cases where tendering of an apology is sufficient, and
cases where it is necessary to inflict punishment on the contemnor.
An attempt to circumvent the orders of the court is derogatory to
the very dignity of the court and administration of justice. A person
who attempts to salvage himself by showing ignorance of the
court's order, of which he quite clearly had the knowledge, would
again be an attempt on his part to circumvent the process of law.
Tendering a justification would be inconsistent with the concept of
an apology. An apology which is neither sincere nor satisfactory
and is not made at the appropriate stage may not provide sufficient
grounds to the court for the acceptance of the same. It is also an
accepted principle that one who commits intentional violations must
also be aware of the consequences of the same. One who tenders
an unqualified apology would normally not render justification for
the contemptuous conduct. In any case, tendering of an apology is
a weapon of defence to purge the guilt of offence by the contemnor.
It is not intended to operate as a universal panacea to frustrate the
action in law, as the fundamental principle is that rule of law and
dignity of the court must prevail.
××× ××× ×××
14. From the above principle, it is clear that consideration of an
apology as contemplated under Explanation to Section 12(1) of the Act
is not a panacea to avoid action in law universally. While considering
the apology and its acceptance, the court inter alia considers: (a) the
conduct of the contemnor prior and subsequent to the tendering of
apology. If the conduct is contemptuous, prejudicial and has harmed
the system and other innocent persons as a whole, it would be a factor
which would weigh against the contemnors; and (b) the stage and time
when such apology is tendered.
(Emphasis supplied)
109. In the case of Sevakram (supra), it was held that an apology
neither purges nor washes away the act of contempt and at best it is a
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1131
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
mitigating circumstance while considering the consequential order following
finding of contempt having been committed. The relevant portion is produced
hereunder:
"46. The various decisions referred to by both parties need not detain
us for long inasmuch as there is no distinction on principle in the
decided cases. An apology is not a weapon of defence. Apology neither
purges nor washes away an act of contempt. It is at best a mitigating
circumstance while considering the consequential orders to be made,
once a person is found to have committed Contempt of Court, civil
or criminal. It is a factor relevant to be considered while devising the
final order to be made against the contemner. An apology can only be
considered which is in real sense remorseful and to the satisfaction
of the Court as a contrition by the respondents. Ordinarily, belated
apologies are considered to be offered more out of fear of punishment
than with a sense of contrition. But merely because the apology has
been tendered, not at the first instance, but at a later stage, by itself
cannot be a ground for not considering it. Had it been so, proviso to
Sec. 12 which makes it possible even after sentence of punishment
has been made, to remit the same on considering the apology given
thereafter. In short, whether an apology tendered at any stage of the
proceedings is to be considered as mitigating circumstances or not
depends on facts and circumstances of that case and that principle is
not inhibited by any precedent. The precedents serve as guidelines."
(Emphasis supplied)
110. The Constitution Bench of this Court in M.Y. Shareef and another
v. Hon'ble Judges of the Nagpur High Court and others reported in AIR
1955 SC 19 observed thus:
“10. The proposition is well settled and self-evident that there cannot
be both justification and an apology. The two things are incompatible.
Again an apology is not a weapon of defence to purge the guilty of
their offence; nor is it intended to operate as a universal panacea,
but it is intended to be evidence of real contriteness. The appellants
having tendered an unqualified apology, no exception can be taken
to the decision of the High Court that the application for transfer
1132 SUPREME COURT REPORTS [2023] 11 S.C.R.
did constitute contempt because the judges were scandalized with a
view to diverting the due course of justice, and that in signing this
application the two advocates were guilty of contempt. That decision
therefore stands.”
(Emphasis supplied)
111. Thus, apology is not just a word. The court should not accept
the apology when it appears that saying sorry is nothing but a legal trick to
wriggle out of responsibility. A true apology must be a deep ethical act of
introspection, self-introspection, atonement and self-reform. In its absence,
an apology can be termed as farce.
112. It is equally well-settled that apology tendered is not to be accepted
as a matter of course and the court is not bound to accept the same. Although,
the apology may be unconditional, unqualified and bona fide, yet, if the
conduct is serious which has caused damage to the dignity of the institution
the same need not to be accepted.
113. In the facts of the case, we are convinced that although the
appellants might have tendered the apology before the High Court in the first
instance, yet such apology does not deserve to be accepted and was rightly
not accepted by the High Court. It was nothing but a gamble on the part
of the appellants. It is a lame excuse on their part to say that they were left
with no choice but to execute the sale deeds. They have also highlighted few
circumstances in this regard. However, we are not at all convinced with any
such explanations offered by the appellants. They took a calculated risk to
transfer the properties and pocketed the sale consideration. If there was any
impending urgency to execute the sale deeds, they could have come to the
High Court and should have obtained appropriate clarification or permission
in that regard. This is the reason why we say that the appellants with a view
to gain wrongfully gambled in the hope that ultimately, they would get
away by tendering an apology. This is the reason why such fake apologies
should not be accepted by the court and allow a person who has no regard
for the Majesty of law to get away from the legal consequences. There is no
occasion for us to show any compassion as contempt has been committed
and proved beyond reasonable doubt and the effect of this contempt has
been felt on the Majesty of the High Court. The litigating public cannot be
encouraged that such a situation can continue or the court will not rise to the
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL 1133
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
occasion to book people violating its orders. The law is very clear that the
court should not get compassionate and dilute an indictment and not follow
it with conviction. The fact that the appellants have committed contempt is
not in doubt. The law enjoins that a punishment must follow.
114. We take notice of the fact that the issue of limitation to initiate
the contempt proceedings was also raised before the High Court. The High
Court has answered the same quite elaborately. In fact, this issue was not
raised before us during the course of the hearing of these appeals. We need
not go into the issue of limitation any further.
115. The learned counsel appearing for the appellants have placed
reliance on few decisions of this Court. We have looked into all those
decisions. None of the decisions, is of any avail to the appellants. It is not
necessary for us to deal with each and every judgment relied upon on behalf
of the appellants. We have extensively discussed the position of law on all
the issues relating to contempt of court.
116. We may summarise our final conclusion as under:
(i) We hold that an assurance in the form of an undertaking given
by a counsel / advocate on behalf of his client to the court; the
wilful breach or disobedience of the same would amount to “civil
contempt” as defined under Section 2(b) of the Act 1971.
(ii) There exists a distinction between an undertaking given to a party
to the lis and the undertaking given to a court. The undertaking
given to a court attracts the provisions of the Act 1971 whereas
an undertaking given to a party to the lis by way of an agreement
of settlement or otherwise would not attract the provisions of
the Act 1971. In the facts of the present case, we hold that the
undertaking was given to the High Court and the breach or
disobedience would definitely attract the provisions of the Act
1971.
(iii) Although the transfer of the suit property pendente lite may not
be termed as void ab initio yet when the court is looking into such
transfers in contempt proceedings the court can definitely declare
such transactions to be void in order to maintain the majesty of
law. Apart from punishing the contemnor, for his contumacious
1134 SUPREME COURT REPORTS [2023] 11 S.C.R.
conduct, the majesty of law may demand that appropriate
directions be issued by the court so that any advantage secured
as a result of such contumacious conduct is completely nullified.
This may include issue of directions either for reversal of the
transactions by declaring such transactions to be void or passing
appropriate directions to the concerned authorities to ensure that
the contumacious conduct on the part of the contemnor does not
continue to enure to the advantage of the contemnor or any one
claiming under him.
(iv) The beneficiaries of any contumacious transaction have no right
or locus to be heard in the contempt proceedings on the ground
that they are bona fide purchasers of the property for value
without notice and therefore, are necessary parties. Contempt
is between the court and the contemnor and no third party can
involve itself into the same.
(v) The apology tendered should not be accepted as a matter of
course and the court is not bound to accept the same. The apology
may be unconditional, unqualified and bona fide, still if the
conduct is serious, which has caused damage to the dignity of the
institution, the same should not be accepted. There ought not to
be a tendency by courts, to show compassion when disobedience
of an undertaking or an order is with impunity and with total
consciousness.
117. In the result, all the three appeals fail and are hereby dismissed.
118. We grant two weeks’ time to the appellants to surrender and serve
out the sentence as imposed by the High Court.
119. No order as to costs.
Headnotes prepared by: Appeals dismissed.
Nidhi Jain
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