BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.

68Copy pinpoint68. 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.

69Copy pinpoint69. 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.

70Copy pinpoint70. 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)

71Copy pinpoint71. 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”.

72Copy pinpoint72. 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

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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.

73Copy pinpoint73. 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.

74Copy pinpoint74. 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.

75Copy pinpoint75. 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.

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76Copy pinpoint76. 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.

77Copy pinpoint77. 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.

78Copy pinpoint78. The first and the second question formulated by us are answered accordingly. ARE CONTEMPTUOUS TRANSACTIONS VOID?

79Copy pinpoint79. 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.

80Copy pinpoint80. 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.

81Copy pinpoint81. 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

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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)

82Copy pinpoint82. 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.

83Copy pinpoint83. 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

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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)

84Copy pinpoint84. 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.

85Copy pinpoint85. 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

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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

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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)

86Copy pinpoint86. 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)

87Copy pinpoint87. 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:

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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)

88Copy pinpoint88. 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.

89Copy pinpoint89. 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.

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IMPLEADMENT OF PURCHASERS AS NECESSARY PARTIES

90Copy pinpoint90. 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.

91Copy pinpoint91. 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)

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SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS. [J. B. PARDIWALA, J.]

92Copy pinpoint92. 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

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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)

93Copy pinpoint93. 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)

94Copy pinpoint94. 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:

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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

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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)

95Copy pinpoint95. 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)

96Copy pinpoint96. 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)

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97Copy pinpoint97. 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

98Copy pinpoint98. 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.

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(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.”

99Copy pinpoint99. 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,

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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.

100Copy pinpoint100. 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.

101Copy pinpoint101. 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.

102Copy pinpoint102. 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.

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103Copy pinpoint103. 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”.

104Copy pinpoint104. In re. Tapan Kumar (supra), this Court was dealing with a public servant facing an action for contempt.

105Copy pinpoint105. 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.

106Copy pinpoint106. 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.

107Copy pinpoint107. 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:

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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

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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)

108Copy pinpoint108. 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

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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

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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)

109Copy pinpoint109. 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

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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)

110Copy pinpoint110. 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

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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)

111Copy pinpoint111. 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.

112Copy pinpoint112. 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.

113Copy pinpoint113. 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

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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.

114Copy pinpoint114. 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.

115Copy pinpoint115. 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.

116Copy pinpoint116. 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

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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.

117Copy pinpoint117. In the result, all the three appeals fail and are hereby dismissed.

118Copy pinpoint118. We grant two weeks’ time to the appellants to surrender and serve out the sentence as imposed by the High Court.

119Copy pinpoint119. No order as to costs.

Headnotes prepared by: Appeals dismissed. Nidhi Jain