SHYAM SAHNIversusARJUN PRAKASH AND OTHERS

                        [2020] 7 S.C.R. 117                             117


                          SHYAM SAHNI                                   A
                                 v.
               ARJUN PRAKASH AND OTHERS
                  (Civil Appeal No. 2210 of 2020)
                         MARCH 19, 2020                                 B

         [R. BANUMATHI AND A. S. BOPANNA, JJ.]
       Contempt of Court – Deposit of passport to ensure presence
and compliance of the order of the Court – Appellant filed a civil
suit seeking declaration, possession, permanent injunction and also     C
for partition of the suit property owned by his late mother – Mother
of the appellant had constructed a main building having ground
floor and first floor – According to respondent no. 1, the said
property was equally divided by mother of appellant between her
son-appellant and her daughter (respondent no. 1’s mother) – The
Single Judge of the High Court vide order dated 02.06.2008 granted      D
interim injunction restraining the respondent no.1 and his father
from alienating or creating 3rd party interest in the suit property –
Thereafter, a Company formed by respondent no. 1, his wife and
his father, took a term loan from a Bank and first floor of the said
suit property was created as a secondary collateral security – Both     E
respondent no. 1 and his father gave undertaking in the Court that
they will clear the charge created on the suit property in 4 months –
However, they failed to comply the undertakings given by them –
Thereafter, various contempt applications were filed against
respondent no. 1 and his father, which were followed by repeated
undertakings and the same were not complied with – The Single           F
Judge of the High Court directed respondent no. 1 to surrender his
passport vide order dated 26.05.2017 to ensure his presence and
his compliance of the order of the Court – However, Division Bench
of the High Court set aside the said order of the Single Judge of the
High Court – On appeal, held: Since repeated undertaking were
                                                                        G
filed and the same were not complied with, the Single Judge of the
High Court directed respondent no. 1 to surrender his passport –
The said order was passed to ensure the presence of the first
respondent and compliance of the order of the Court – It cannot be
said that the Single Judge exceeded the jurisdiction or committed
an error in ordering surrender of the passport – In order to ensure     H
                                117
118            SUPREME COURT REPORTS                      [2020] 7 S.C.R.


A     the presence of the parties in the contempt proceedings, the Court
      is empowered to pass appropriate orders including the surrender
      of passport – The Single Judge had not ordered impounding of the
      passport – The Single Judge had directed respondent no. 1 to deposit
      his passport in the Court – The Division Bench was not right in
      setting aside the order of the Single Judge – The order of the Single
B
      Judge of the High Court directing to deposit his passport is
      confirmed.
            Allowing the appeal, the Court
             HELD: 1. The short point falling for consideration is
C     whether respondent No.1 is to be proceeded for contempt and
      whether the Single Judge was right in directing the deposit of
      first respondent’s passport. Of course, on 15.07.2013, father of
      respondent no.1 and respondent No.1 filed an undertaking that
      they shall clear dues of Bank of India and the suit property shall
      be cleared of all charges/encumbrances within a period of four
D     months and that they shall make arrangement of the loan amount
      to be paid to the Bank of India from other moveable and
      immoveable properties. Subsequently also, respondent No.1 and
      his father filed an undertaking before the Court. Having filed the
      undertaking, it was required of the first respondent to keep up
E     to his undertaking filed before the Court. On behalf of respondent
      No.1, his counsel submitted that respondent No.1 was making
      genuine efforts to pay the amount to the Bank and clear the charge
      on the property; but due to unavoidable circumstances, they could
      not clear the charge over the suit property. As pointed out earlier,
      father of respondent no.1 was suffering from illness and passed
F     away within one week after the order was passed on 20.10.2015.
      [Para 24][128-D-G]
            2. Since repeated undertakings were filed and the same
      were not complied with, Single Judge directed respondent No.1
      to surrender his passport. The said order was passed to ensure
G     the presence of the first respondent and compliance of the order
      of the Court. It cannot be said that the Single Judge exceeded
      the jurisdiction or committed an error in ordering surrender of
      the passport. In order to ensure the presence of the parties in
      the contempt proceedings, the Court is empowered to pass
H
        SHYAM SAHNI v. ARJUN PRAKASH AND ORS.                           119


appropriate orders including the surrender of passport. While           A
dealing with child custody matter, in David Jude vs. Hannah Grace
Jude and Another (2003) 10 SCC 767, the Supreme Court directed
Union of India to cancel the passport of contemnor No.1 and to
take necessary steps to secure the presence of contemnor No.1
with the child in India and to ensure her appearance before the
                                                                        B
Court on the date of hearing. [Para 25][128-G-H; 129-A-B]
      3. It is pointed out that the Division Bench proceeded as if
the Single Judge has ordered impounding of the passport of
respondent No.1; whereas, the Single Judge has only directed
respondent No.1 to deposit his passport in the Court. As                C
discussed earlier, the purpose of directing respondent No.1 to
surrender his passport was only to ensure the presence of
respondent No.1 who was filing repeated undertakings before
the Court but was not complying with the same. In view of this
Court, the Division Bench was not right in setting aside the order
of the Single Judge in directing respondent No.1 to deposit his         D
passport before the Court and the judgment of the Division Bench
cannot be sustained. In order to ensure the presence of
respondent No.1 and to ensure further progress of the trial, the
order of the Single Judge directing respondent No.1 to deposit
his passport before the Court stands confirmed. [Para 26]               E
[129-C-E]
      David Jude v. Hannah Grace Jude and Another (2003)
      10 SCC 767 – relied on.
                       Case Law Reference
                                                                        F
(2003) 10 SCC 767              relied on               Para 25
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2210
of 2020.
      From the Judgment and Order dated 01.08.2018 of the High Court    G
of Delhi at New Delhi in FAO (OS) No. 210 of 2017.
      Jayant Bhushan, Sr. Adv., Dinesh Chandra Pandey, Piyush Sharma,
Alok Kumar, Ms. Shubhangi Tiwari, Jawahar Lal, Mohammad Sajid and
V. Elanchezhiyan, Advs., for the appearing parties.
                                                                        H
120            SUPREME COURT REPORTS                           [2020] 7 S.C.R.


A           The Judgment of the Court was delivered by
            R. BANUMATHI, J.
            1. Leave granted.
             2. This appeal has been filed assailing the impugned judgment and
B     final order dated 01.08.2018 passed by the High Court of Delhi at New
      Delhi in FAO (OS) No.210 of 2017 in and by which the Division Bench
      of the High Court has set aside the order of the learned Single Judge and
      allowed the appeal filed by respondent No.1 (defendant No.4) herein by
      holding that the passport of respondent No.1 (defendant No.4) ought not
      to have been ordered to be detained and further directed return of the
C     passport of respondent No.1 (defendant No.4).
            3. Brief facts which led to filing of this appeal are as follows:-
             The appellant filed a civil suit being CS (OS) No.1134 of 2008
      before the High Court seeking declaration, permanent injunction and
D     possession of the suit property being the first and second floor of the
      residential house constructed upon Plot No.68, Friends Colony (West),
      New Delhi. Alternatively, appellant has sought the partition of the suit
      property. Case of the appellant is that in 1954, Late Niamat Sahni acquired
      Plot No.68, Friends Colony (West), New Delhi, measuring 3000 sq. yards
      from Friends Colony Cooperative Housing Building Society Limited
E     wherein, she constructed a main building having a ground floor and first
      floor. Niamat Sahni herself and with her son Shyam Sahni (appellant)
      and his family were residing in the ground floor. Soon after the demise
      of Niamat Sahni, the appellant came to know that Sarabjit Prakash and
      respondent No.1 have executed documents purporting to be sale deeds
F     and other documents in their favour or in favour of other persons qua
      first floor and second floor and terrace in the residential building
      constructed upon 68, Friends Colony (West) New Delhi belonging to
      mother of the appellant, the appellant has filed a civil suit seeking
      declaration, possession and permanent injunction and also for partition in
      CS (OS) No.1134 of 2008 which is pending at the stage of cross-
G     examination of the defendants witnesses.
             4. Respondent No.1 resisted the suit contending that first
      respondent’s mother Usha Prakash took physical possession of the first
      floor and terrace and the second floor in 1974 and the same was let out.
      On 13.08.1984, Niamat Sahni made a registered will in Hindi dividing
H     equal shares between her son- appellant Shyam Sahni and her daughter
         SHYAM SAHNI v. ARJUN PRAKASH AND ORS.                                 121
                  [R. BANUMATHI, J.]

Usha Prakash (mother of respondent No.1). On 23.12.1992, Niamat                A
Sahni also made another registered will in English which was identical to
her previous will made in 1984. It is stated that on 06.12.1999, an
Irrevocable Memorandum of Family Settlement was signed between
the appellant and Usha Prakash (mother of respondent No.1) which
was confirmed by Niamat Sahni thus, dividing 50% of the undivided
                                                                               B
share in the plot of land between her son and daughter. According to
respondent No.1, as per settlement, ground floor of the suit property
was given to the appellant with the entire parking, garages and servant
quarters on the left side of the property; while the first floor and also
subsequent floors (with entire parking and front entrance on the right
side of the suit property) were given to Usha Prakash-mother of                C
respondent No.1. According to respondent No.1, the family settlement
dated 06.12.1999 is an irrevocable Family Settlement between the
appellant and Usha Prakash and was also acted upon dividing the suit
property by meets and bounds. Respondent No.1 has further stated that
Niamat Sahni had executed a General Power of Attonery on 03.01.2002
                                                                               D
and pursuant to the said Power of Attorney, Usha Prakash sold three
flats on the second floor to separate parties and first floor to her husband
Sarabjit Prakash by way of separate registered sale deeds. On 26.06.2005,
Usha Prakash passed away due to cancer.
       5. Respondent No.1 further stated that in October, 2007, M/s.
Soul & Attires Creations Private Limited (a company formed by first            E
respondent, his wife and his father Sarabjit Prakash) took a term loan
for Rs.4.25 crores from Bank of India. Sarabjit Prakash also stood as
the Guarantor for the said project funding loan from the Bank of India
and an equitable mortgage has been created on the first floor of the
property as the secondary collateral security to Bank of India as per          F
RBI guidelines. In the written submission, first respondent has further
alleged that the appellant had filed a civil suit being CS (OS) No.1134 of
2008 concealing the factum of irrevocable Memorandum of Family
Settlement on 06.12.1999. In October, 2008, an additional Working Capital
Limit (stated to be against Stocks and Book Debts) was granted to the
aforesaid company by the Bank of India for Rs.5 crores. By end of              G
2009, the account of M/s. Soul & Attires Creations Private Limited was
declared as Non-performing Assets by Bank of India and Bank of India
took physical possession of the first floor on 31.10.2011. Since the loan
has become Non-performing Assets, Bank of India had filed O.A. No.297
of 2011 before DRT, New Delhi and the same was decreed by DRT and              H
122             SUPREME COURT REPORTS                            [2020] 7 S.C.R.


A     RC No.172/2012 was issued by the Bank of India and the recovery
      proceedings are still going on before the Recovery Officer.
            6. The grievance of respondent No.1 is that the loan facility was
      availed and equitable mortgage was created even in the first week of
      October, 2007 much prior to the ex-parte order dated 02.06.2008. Further
B     grievance of the first respondent is that they were not heard before
      granting the ex-parte stay on 02.06.2008.
             7. The learned Single Judge vide order dated 02.06.2008 granted
      interim injunction restraining the defendants from selling, alienating or
      creating any third party rights in the suit property. Taking note of the
C     plaint averments that defendant No.1-Sarabjit Prakash and respondent
      No.1 are raising further construction on the suit property and they have
      been creating documents executed by Usha Prakash and other
      defendants, the learned Single Judge found that the balance of
      convenience lies in favour of the appellant-plaintiff thereby, granted the
      ex-parte order of stay on 02.06.2008.
D
             8. Aggrieved by the disobedience of the injunction order by the
      defendants, the appellant filed an application being I.A. No.19801 of
      2011 under Order XXXIX Rule 2A CPC read with Sections 10 and 12
      of the Contempt of Courts Act for breach of injunction order dated
      02.06.2008. It is alleged that in spite of above injunction order, respondent
E     No.1 (defendant No.4) and defendant No.1 (Sarabjit Prakash) who is
      father of respondent No.1 availed financial facilities from Bank of India
      by mortgaging the first floor of the suit property to the tune of Rs.4.20
      crore to Rs. 5.20 crore which was enhanced on two different occasions
      i.e. when the defendants created charge over suit property to Rs.9.24
F     crore and later on, to Rs.11 crore.
             9. The contempt petition was heard by the learned Single Judge
      on various dates and number of orders came to be passed. Though
      number of orders have been passed, we will only refer to those of the
      orders which are relevant for consideration of this appeal. On 05.12.2011,
G     when the matter came up for hearing, learned Single Judge confirmed
      the injunction order dated 02.06.2008 directing the parties to maintain
      status-quo with respect to the suit property. In the subsequent hearing,
      by order dated 21.05.2013, learned Single Judge held defendant No.1
      guilty of contempt and directed defendant No.1 and defendant No.4-
      respondent No.1 to appear before the Court disclosing the list of assets.
H     On 02.07.2013, both defendant No.1 and defendant No.4-respondent
         SHYAM SAHNI v. ARJUN PRAKASH AND ORS.                                    123
                  [R. BANUMATHI, J.]

No.1 submitted that the charge so created on the suit property will be            A
cleared by them within four months from their own funds and resources.
Accordingly, the Court directed defendant No.1-Sarabjit Prakash and
respondent No.1-defendant No.4 to file an undertaking in this regard.
The said direction was complied with and both of them submitted their
respective undertakings on 15.07.2013. However, on 16.12.2013, Court              B
recorded that despite submitting their undertaking to that effect, both
Sarabjit Prakash and respondent No.1 (defendant No.4) have failed to
comply with the undertakings given by them.
       10. Being aggrieved, appellant filed I.A. No.41 of 2013 under
Order XXXIX Rule 2A read with Section 151 of CPC with Sections 10
                                                                                  C
and 12 of the Contempt of Courts Act against respondent No.1 (defendant
No.4) and his father Sarabjit Prakash (defendant No.1) for not complying
with the respective undertaking/statement. Respondent No.1 along with
his father Sarabjit Prakash-defendant No.1 filed a joint reply pleading
their insolvency and difficulties in clearing the charge and furnished
another undertaking to clear charge over suit property from the amount            D
received from selling the suit property and another property at 33, Sundar
Nagar, New Delhi. In the meanwhile, defendant No.1 died on 28.10.2015.
        11. On the next date of hearing, the Court recorded that respondent
No.1 (defendant No.4) had left Delhi and shifted to Singapore with his
family and counsel for respondent No.1 was directed to file fresh address         E
of respondent No.1 along with the relevant documents to establish the
proof of his residence. The said direction was again reiterated on
28.07.2016. Respondent No.1 filed an affidavit wherein he claimed that
he is still living in Delhi and did not mention his Singapore resident details.
On the next date of hearing i.e. on 29.09.2016, the Court recorded that
respondent No.1 has till date not liquidated the amount as stated by him,         F
therefore, his personal presence was directed in the court on 04.11.2016.
Despite such direction, respondent No.1-defendant No.4 was not present
before the court and on the next date of hearing i.e. on 13.02.2017, the
proceedings were set ex-parte qua respondent No.1.
       12. On 02.03.2017, the court recorded that the charge on the suit          G
property has still not been cleared till date and respondent No.1-defendant
No.4 was asked to deposit his passport and furnish security. Accordingly,
respondent No.1-defendant No.4 offered three properties situated in
Amritsar owned by his mother-in-law (Rama Khanna) as a security and
his passport was deposited in the custody of Court Master. Respondent             H
124            SUPREME COURT REPORTS                          [2020] 7 S.C.R.


A     No.1 thereafter filed an undertaking to the effect that passports of his
      family members be revoked and proceedings for extradition can be
      initiated on his not returning to India. The court vide order dated
      22.03.2017 accepted the undertaking given by respondent No.1 and
      directed the Court Master to hand over the passport to respondent No.1
      and court directed him to appear on 26.05.2017. Adopting the same
B
      attitude, respondent No.1 did not comply with the undertaking furnished
      by him this time. Noting non-compliance of the earlier order and noticing
      breach of repeated undertakings given by him, by order dated 26.05.2017,
      the Court restrained him from leaving the country and directed him to
      deposit his passport with the Assistant Registrar.
C             13. Aggrieved by the order dated 26.05.2017, respondent No.1
      filed I.A. No.6907 of 2017 seeking recall of the order dated 26.05.2017.
      As the matter was listed, respondent No.1 once again did not mark his
      presence before the Court. It was informed to the Court by the counsel
      appearing on behalf of respondent No.1 that he had not left the country
D     as directed by the Court vide order dated 26.05.2017 and that the passport
      of respondent No.1 would be deposited today itself. Vide order dated
      30.05.2017, learned Single Judge in Para (5) of the order directed the
      Registry to send communication relating to his passport details to the
      concerned authorities in terms of Para (4) of the order dated 26.05.2017.
      Under the same order, respondent No.1 was restrained from leaving the
E     country and the matter was adjourned. It was later revealed from the
      inspection of court file that a report from the Immigration Department
      was received reflecting that respondent No.1 was detained while returning
      to India on 05.07.2017.
              14. The appellant once again filed an application being I.A. No.
F     7557 of 2017 under Order XXXIX Rule 2A CPC read with Section 151
      of CPC with Sections 10 and 12 of the Contempt of Courts Act seeking
      initiation of contempt proceedings and for appropriate directions against
      respondent No.1.
             15. Respondent No.1 thereafter approached the Division Bench
G     of the High Court by filing FAO (OS) No. 210 of 2017 challenging the
      Para (4) of the order dated 26.05.2017 and Para (5) of the order dated
      30.05.2017 passed by the learned Single Judge. Vide impugned judgment,
      the Division Bench allowed FAO (OS) No.210 of 2017 by holding that
      the bank with which the charge was created on the property was not a
H     party before the learned Single Judge and that there was no reason to
         SHYAM SAHNI v. ARJUN PRAKASH AND ORS.                                  125
                  [R. BANUMATHI, J.]

take any coercive steps against respondent No.1-defendant No.4 for his          A
failure to honour his commitment qua the bank. Likewise, there was no
reasonable justification to impose any restriction like retention of passport
and the Division Bench directed return of the passport to respondent
No.1-defendant No.4. Aggrieved by the order of the Division Bench,
the appellant came before us.
                                                                                B
        16. Learned Senior counsel for the appellant has contended that
upon initiation of contempt proceedings by the appellant, respondent No.1
gave an unconditional undertaking to clear the charges created over a
portion of the suit property within four months; however, such undertaking
turned out to be mere words and no such charge was cleared by the first
respondent within the period which he has undertaken. It was submitted          C
that respondent No.1 was repeatedly giving evasive replies and
undertakings; but failed to comply with the same. Drawing our attention
to the affidavit dated 27.08.2016, learned Senior counsel for the appellant
has submitted that in the said affidavit, respondent No.1 has stated that
he is still residing in Delhi, when in fact he had already shifted along with   D
his family to Singapore in May, 2016 itself. Learned Senior counsel further
submitted that the present case is not a case of impounding of passport;
rather the present case is where the learned Single Judge directed
respondent No.1 to deposit the passport as per his undertaking in terms
of his affidavit dated 10.03.2017 so as to ensure the presence of
respondent No.1 since the Court was of the view that respondent No.1            E
would leave India for Singapore. It was contended that while dealing
with the contempt petition, in order to ensure compliance of the orders
of the Court and make sure that the parties adhere to the undertakings
filed before the Court, the Court has the power to direct deposit of the
passport and the Division Bench erred in setting aside the order of the         F
learned Single Judge.
      17. Per contra, learned counsel appearing for the respondents
has submitted that respondent No.1 and his father Late Sarabjit Prakash
has made all the efforts to clear the bank dues; but due to unavoidable
circumstances, they could not clear the charge. The learned counsel             G
submitted that the equitable market value of the suit property No.68,
Friends Colony (West), New Delhi was made even in October, 2017
much prior to the alleged ex-parte stay order dated 02.06.2008. It was
submitted that the learned Single Judge was not right in passing various
orders restricting the jurisdiction of the DRT for recovery of the Bank
                                                                                H
126             SUPREME COURT REPORTS                             [2020] 7 S.C.R.


A     dues when the Bank of India is not made a party to the suit. It was
      further submitted that there is already an order of status-quo passed in
      the suit being CS (OS) No.1134 of 2008 and therefore, there was no
      need for the learned Single Judge to direct respondent No.1 to deposit
      his passport and issue direction for not leaving the country. It was
      submitted that in 2012, the bank sought the permission of the Court to
B
      sell the first floor to recover its dues but the bank did not pursue and
      resultantly, the said application was dismissed and while so, it was not
      justified for the learned Single Judge to take the burden of the bank and
      directing respondent No.1 to clear the dues. It was submitted that coercive
      directions given by the learned Single Judge compelling respondent No.1
C     to clear the dues was not warranted and rightly set aside by the Division
      Bench and the impugned order does not warrant interference.
             18. We have carefully considered the submissions of both the
      sides and perused the impugned judgment and other materials on record.
             19. Sarabjit Prakash was directed to be personally present before
D     the Court on 30.05.2013. On the next date of hearing i.e. 30.05.2013,
      Sarabjit Prakash was not present in the Court and the matter was listed
      for 02.07.2013. By the order dated 02.07.2013, Sarabjit Prakash
      (defendant No.1) and respondent No.1-defendant No.4 who were present
      in the Court stated that if four months’ time is given to them, they will
E     ensure that the dues of Bank of India are discharged and part of the suit
      property which is charged with the Bank of India namely, First floor of
      68, Friends Colony (West), New Delhi, shall be freed of all charges/
      encumbrances. Sarabjit Prakash and respondent No.1 have also stated
      that they will file appropriate affidavit to that effect and on such statement,
      the contempt petition was kept in abeyance for four months. Accordingly,
F     Sarabjit Prakash and respondent No.1 have filed affidavit of undertaking
      before the Court on 15.07.2013 undertaking that they will clear the dues
      of Bank of India when the property bearing No.68, First Floor, Friends
      Colony (West), New Delhi shall be freed of all charges/encumbrances
      within a period of four months and that they will make arrangement of
G     the loan amount to be paid to the Bank of India from other moveable and
      immoveable properties in the name of Sarabjit Prakash.
             20. When the matter was taken up by the Court, the Court noted
      that as per undertaking, the amount has not been paid to the Bank and
      Sarabjit Prakash and respondent No.1 have failed to clear the charge
H     over the suit property as per undertaking. The appellant again filed I.A
         SHYAM SAHNI v. ARJUN PRAKASH AND ORS.                                127
                  [R. BANUMATHI, J.]

No.41 of 2013 under Order XXXIX Rule 2A against Sarabjit Prakash              A
and respondent No.1 for not complying with the respective undertaking/
statement made before the Court. On 24.01.2014, Sarabjit Prakash and
respondent No.1 filed a joint reply stating that due to unavoidable
circumstances, they are unable to clear the charge over the suit property
and undertaking to clear the charge over the suit property from the amount
                                                                              B
received from 33, Sundar Nagar, New Delhi.
      21. On application filed by the appellant in I.A. No.21764 of 2015,
on 20.10.2015, the High Court directed that amount of Rs.3.50 crores
will not be utilized by Sarabjit Prakash and respondent No.1 except to
the extent of meeting the medical expenses of Sarabjit Prakash. One
week after the above order, Sarabjit Prakash passed away on 28.10.2015        C
at Apollo Hospital, New Delhi due to multiple heart arrests.
       22. On 28.07.2016, the Court directed respondent No.1 to furnish
his current address and also the extent of bequest in his favour to the
estate of deceased Sarabjit Prakash. It is alleged by the appellant that
respondent No.1 filed a false affidavit claiming to be residing at B-334,     D
New Friends Colony, Ground floor, Delhi without disclosing the Singapore
address. On 02.03.2017, the Court recorded that the encumbrances on
the suit property were not cleared till date and directed respondent No.1
to deposit his passport and furnish the security. On the next date of
hearing i.e. 07.03.2017, respondent No.1 offered three properties owned       E
by his mother-in-law (Rama Khanna from Amritsar) by depositing title
deeds stating that he has no other security to offer. Observing that
respondent No.1 has failed to comply with his undertakings/statements,
on 26.05.2017, the learned Single Judge directed respondent No.1 to
deposit his passport and made an order restraining respondent No.1 from
leaving India.                                                                F

        23. According to respondent No.1, he has shown his bonafide by
producing additional security before the Court by depositing original title
deeds of three properties belonging to his mother-in-law (Rama Khanna
from Amritsar) to the tune of Rs.4.45 crores. Learned counsel for
respondent No.1 has submitted that equitable mortgage of the suit property    G
(i.e. 68, Friends Colony (West), First Floor, New Delhi) was made even
in the first week of October, 2007 which was much prior to the ex-parte
stay order dated 02.06.2008. Learned counsel further submitted that in
October, 2008, additional Working Capital was granted to the company-
M/s. Soul & Attires Creations Private Limited for Rs.5 crores (against        H
128            SUPREME COURT REPORTS                          [2020] 7 S.C.R.


A     Stock and Book Debts) as per banking regulations. According to
      respondent No.1, this enhanced limit is never a loan against the property;
      but only against Stocks and Book Debts. Learned counsel appearing for
      respondent No.1 has submitted that respondent No.1 is a bonafide legal
      owner of the suit property by means of registered will made in his favour
      by his father-Sarabjit Prakash dated 29.09.2006 who had the legal title
B
      in his name by way of registered sale deed executed by his wife Usha
      Prakash in exercise of the power vested in her through the registered
      Power of Attorney dated 03.01.2002 given to her by her mother Niamat
      Sahni and thus, respondent No.1 claims title over the suit property No.68,
      Friends Colony (West), First Floor, New Delhi. The question regarding
C     the correctness of the sale deed executed by Usha Prakash – mother of
      respondent No.1 in favour of Sarabjit Prakash and the dispute raised
      regarding the title of the property could be determined only in the suit
      after parties adduced oral and documentary evidence.
             24. The short point falling for consideration is whether respondent
D     No.1 is to be proceeded for contempt and whether the learned Single
      Judge was right in directing the deposit of first respondent’s passport.
      Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filed
      an undertaking that they shall clear dues of Bank of India and the suit
      property shall be cleared of all charges/encumbrances within a period of
      four months and that they shall make arrangement of the loan amount to
E     be paid to the Bank of India from other moveable and immoveable
      properties. Subsequently also, Sarabjit Prakash and respondent No.1
      filed an undertaking before the Court. Having filed the undertaking, it
      was required of the first respondent to keep up to his undertaking filed
      before the Court. On behalf of respondent No.1, learned counsel
F     submitted that respondent No.1 was making genuine efforts to pay the
      amount to the Bank and clear the charge on the property; but due to
      unavoidable circumstances, they could not clear the charge over the suit
      property. As pointed out earlier, Sarabjit Prakash was suffering from
      illness and passed away within one week after the order was passed on
      20.10.2015.
G
            25. Since repeated undertakings were filed and the same were
      not complied with, learned Single Judge directed respondent No.1 to
      surrender his passport. The said order was passed to ensure the presence
      of the first respondent and compliance of the order of the Court. It
      cannot be said that the learned Single Judge exceeded the jurisdiction or
H
         SHYAM SAHNI v. ARJUN PRAKASH AND ORS.                                  129
                  [R. BANUMATHI, J.]

committed an error in ordering surrender of the passport. In order to           A
ensure the presence of the parties in the contempt proceedings, the Court
is empowered to pass appropriate orders including the surrender of
passport. While dealing with child custody matter, in David Jude vs.
Hannah Grace Jude and Another (2003) 10 SCC 767, the Supreme
Court directed Union of India to cancel the passport of contemnor No.1
                                                                                B
and to take necessary steps to secure the presence of contemnor No.1
with the child in India and to ensure her appearance before the Court on
the date of hearing.
       26. It is pointed out that the Division Bench proceeded as if the
learned Single Judge has ordered impounding of the passport of
respondent No.1; whereas, the learned Single Judge has only directed            C
respondent No.1 to deposit his passport in the Court. As discussed earlier,
the purpose of directing respondent No.1 to surrender his passport was
only to ensure the presence of respondent No.1 who was filing repeated
undertakings before the Court but was not complying with the same. In
our view, the Division Bench was not right in setting aside the order of        D
the learned Single Judge in directing respondent No.1 to deposit his
passport before the Court and the judgment of the Division Bench cannot
be sustained. In order to ensure the presence of respondent No.1 and to
ensure further progress of the trial, the order of the learned Single Judge
directing respondent No.1 to deposit his passport before the Court stands
confirmed.                                                                      E

       27. On behalf of the appellant, it is stated that in view of the order
of the Division Bench, the contempt petition has been disposed of by the
learned Single Judge on 04.12.2018 and prayed for restoration of the
contempt petition. Since the suit is of the year 2008 and much of the
court’s time has been spent on the interim orders and on the contempt           F
petition, we are not inclined to issue direction for restoration of the
contempt petition. Since, the suit is of the year 2008 and the trial has
already commenced and the matter is said to have been pending for
cross-examination of the defendants witnesses, it is suffice to direct
early expeditious disposal of the suit at the same time, ensuring that          G
respondent No.1 will be available at the stage when the suit is disposed
and in case he suffers an adverse decree.
      28. The impugned order of the Division Bench dated 01.08.2018
passed by the High Court of Delhi at New Delhi in FAO (OS) No.210 of
2017 is set aside and this appeal is allowed. In order to ensure the presence   H
130                SUPREME COURT REPORTS                      [2020] 7 S.C.R.


A     of respondent No.1 and to ensure further progress of the trial, the order
      of the learned Single Judge directing respondent No.1 to deposit his
      passport before the Court stands confirmed. The learned Single Judge is
      requested to take up the civil suit being CS (OS) No.1134 of 2008 and
      continue with the trial and dispose the same expeditiously preferably
      within a period of nine months. No costs.
B

      Ankit Gyan                                                 Appeal allowed.




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