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Kuldip Rastogi and anr. Vs. Vishva Nath Khanna - Court Judgment

LegalCrystal Citation
SubjectContempt of Court
CourtDelhi High Court
Decided On
Case NumberCivil Contempt Appeal No. 1 of 1978
Judge
Reported inAIR1979Delhi202
ActsContempt of Courts Act, 1971 - Sections 2, 12 and 13
AppellantKuldip Rastogi and anr.
RespondentVishva Nath Khanna
Appellant Advocate R.L. Tandon, ; Y.K. Sabharwal,; R.P. Bhat,;
Respondent Advocate Manmohan Krishana and ; K.S. Bindra, Advs.
Cases ReferredKalloo Mal Visheshwar Prasad v. Secy.
Excerpt:
contempt of courts act (1971) - sections 2(b), 12(3) & 13--meaning of word 'willful disobedience'-- punishment under section 13 whether dependent on the nature of contempt.; as under :--; (1) 'willful' has the same meaning in the law of contempt as in other branches of the law. there is no reason why in the matter of contempt, it should have some special or peculiar meaning. the ordinary meaning of 'willful' as defined in the concise oxford dictionary, is that 'for which compulsion or ignorance or accident cannot be pleaded as an excuse, intentional, deliberate.....'; (2) the word 'contumacious' in describing contempt has invariably been used disjunctively with 'willful' or 'deliberate'. that, in itself, indicates that contumacious is used as a synonym, and not for the purpose of.....t.p.s. chawla, j. 1. a single judge, sitting on the original side, has found kuldip rastogi and the firm ram swarup rastogi & sons, of which he is one of the partners of contempt of court. kuldip rastogi has been ordered to be detained in a civil on son for three months, and the firm has been fined rs. 2,000/-. both of them have appealed. at the same time, vishwanath khanna who initiated the proceedings for contempt, has also filed an appeal. he maintain that the other partners of the firm are equally guilty of contempt of art, and prays that all of them., including kuldip rastogi, be detained in the civil prison for six months, the maximum period permissible in law. these two appeals have been heard together as they have arisen out of the same order.2. the points canvassed necessitate a.....
Judgment:

T.P.S. Chawla, J.

1. A single judge, sitting on the original side, has found Kuldip Rastogi and the firm Ram Swarup Rastogi & Sons, of which he is one of the partners of contempt of court. Kuldip Rastogi has been ordered to be detained in a civil on son for three months, and the firm has been fined Rs. 2,000/-. Both of them have appealed. At the same time, Vishwanath Khanna who initiated the proceedings for contempt, has also filed an appeal. He maintain that the other partners of the firm are equally guilty of contempt of art, and prays that all of them., including Kuldip Rastogi, be detained in the civil prison for six months, the maximum period permissible in law. These two appeals have been heard together as they have arisen out of the same order.

2. The points canvassed necessitate a somewhat detailed narration of the facts. Nevertheless, I will leave out all that I consider to be irrelevant. That is a task rendered unduly difficult by the many volumes of court record already spawned by the litigation between the parties,

3. In Lucknow there is a cinema called 'Shilpi Theatre! It is owned by a firm known as Ram Swarup Rastogi & Sons. The firm was constituted by a deed dated 2nd September 1972, and the partners are Ram Swarup Rastogi, his wife Phoolmati, and their sons Jagdisb, Kuldip, and Kamal It is stated in the partnership deed that Ram swarup Rastogi and Kuldip Rastogi shall be the managing partners and look after the 'day to day business of the firm,' The deed records that the partners had Weed to construct a cinema on a plot, of land at 11 Cantonment Road, Lucknow, which was owned by Ram Swarup Rastogi and his wife.

4. Probably, the building was already under way when the partnership deed was signed. In my case in October 1972, loan was taken by the firm From the Hindustan Commercial Bank Limited Kanpur, to meet the cost of construction and the cinema mortgaged to the bank. By Dec. 1972 the cinema was still not complete, and funds appear' to have fallen Short. At this stag% Kuldip Rastogi, accompanied his brother and his brother Kamal,approached Vishwanath Khanna at Delhi and made him a proposal. Vishwanath Khanna is in the film business as a distri1xitor and exhibitor. They suggested to him that if he gave them an advance of Rs. 1,00,000/- for completing the structure, they would give him the exclusive right to screen pictures at the cinema on certain terms and conditions, and repay the advance gradually by adjustments in the account. Vishwanath reacted favorably to 'the proposal. So, on 2nd 'Jan. 1973 an agreement was executed between him and Kuldip Rastogi. This agreement has subsequently been held to be binding on the firm (the 'Rastogis'). It is the origin of the present troubles.

5. The agreement is a very elaborate document, but only a few of as terms need to be noticed. It was agreed that the theatre would be placed under the control and disposal' of Vishwanath for a period of 156 weeks (that is, three years) for the 'screening of motion pictures to be supplied' by him. Vishwanath was given the option to continue this agreement for a further period of 104 weeks, that is, another two years. During the first period, the Rastogis were to be paid Rs. 5,100/- per week as their fixed share 'irrespective of the box-office collections.' In the event of the agreement being renewed for the further period, this amount was to be raised to rupees 5,350/- per week.

6. Out of the daily box-office takings, the Rastogis were required to pay entertainment tax, newsreel hire and show tax. The balance was to be deposited daily in the bank account of Vishwanath. The pay-in slips and ' a statement of the takings were to be dispatched to him At the beginning of every week, which in this trade means the Friday, a cheque for Rs. 5,100/- drawn on a bank at Lucknow was to be delivered to the Rastogis in payment of their fixed share. They undertook 'to bear all the expenses relating to the running of the cinema shows, such as rent, taxes of the building premises, staff salary, electricity and telephone bills, cost of cinema carbons, cost of repairs, cooling Arrangement in the cinema and all other incidental charges.'

7. Vishwanath also agreed to deposit as security a sum of Rs. 1,00,000/- with the Rastogis. This amount was to be paid in four equal installments, of which the last was payable as soon as the cinema was ready and a license to run it had been obtained. Repayment was to be made by deducting Rs. 1,000/- per week , for 80 weeks out of the fixed share payable to the Rastogis. The balance of Rs. 20,000/- was to be adjusted in the last month of the period of the contract.

8. An undertaking was given by the Rastogis that during the continuance of the contract they would screen only the pictures supplied by Vishwanath, and no one else. The contract also contained an arbitration clause requiring that all disputes arising, there under shall be refered to the arbitration of the Motion Pictures Association, Delhi.

9. It was envisaged in the contract that the cinema would start functioning m the first week of March 1973, but the completion of the building was delayed. However, from 2nd June 1973 the pictures supplied by Vishwanath began to be screened. For a little over a year the contract was duly performed by the Rastogis. Then, they began to violate their obligation to deposit the daily box-office takings into the bank of account of Vishwanath. By Nov., 1974 these defaults had assumed alarming proportions and large amounts had become outstanding, In addition, Vishwanath began to receive information that the Rastogis were in negotiation for hiring out the theatre to another distributor named B. N. Gupta who carried on business under the style of M/s. Northern India Theatre.

10. Consequently, on 21st Nov., 1974, Vishwanath instituted a suit in the court of the Civil Judge at Lucknow seeking a perpetual injunction to restrain Kuldip Rastogi from committing breach of the contract executed on 2nd Jan., 1973. In that suit, an interim injunction was issued ex parte on 23rd Nov. 1974 restraining Kuldip Rastogi from committing breach of certain terms of that contract. It does not appear from the record what subsequently happened to that suit. In any case, there were other developments by, which it was overshadowed.

11. With the obvious purpose of circumventing the interim injunction which Vishwanath had obtained, the Rastogis adopted a brilliant legal manoeuvre on 9th Dec., 1974 a suit was filed against Kuldip Rastogi, by his father, mother and brothers for dissolution of the partnership and rendition of accounts. The suit was filed in the court of the Civil Judge at Lucknow. Two days later, on ll the Dec., 1974, Ram Swarup Rastogi was appointed Receiver of the firm without any opposition. He did not waste much time in executing an agreement on behalf of the firm with B. N. Gupta on 30th December 1974. Under this agreement the pictures supplied by. B. N. Gupta were to be screened at the cinema and the firm was to be paid Rs. 7,000/per week. The agreement was to remain in force from 2nd January 1975 to 30th December 1977i Thus, Vishwanath was beaten.

12. When Vishwanath got to know of these proceedings, he applied to be imp leaded as a party to the suit and also sought removal of the Receiver. The Civil Judge allowed this application on 14th January 1975, and appointed a member of the Bar as a Receiver instead of Ram Swarup Rastogi. But, in an appeal, and simultaneous revision, the Additional District Judge, Lucknow, set aside that order on 24th Jan., 1975 and the previous position was restored. Vishwanath then took the matter to the High Court of Allahabad and there, on 19th May 1975, the Rastogis, who were the plaintiffs, withdrew their suit. Their object had already been achieved. They had succeeded in bringing into existence the contract with B. N. Gupta.

13. Meanwhile, the locale of the litigation changed to Delhi. On 25th Jan., 1975, Vishwanath filed an application under Section 20 of the Arbitration Act 1940 on the original side of this court. He prayed that the arbitration agreement contained in the contract with Kuldip Rastogi be filed, and the disputes which had arisen between them be referred to arbitration by the Motion Pictures Association. In this proceeding Vishwanath applied for the appointment of a Receiver to supervise the running of Shilpi Theatre. But, his application was dismissed by an order made on 23rd November 1976.

14. Against that order, Vishwanath applied to the Supreme Court for special leave to appeal. The Supreme Court issued notice to the Rastogis on 6th May 1977 to show cause why special leave to appeal should granted, and also appointed a ex parte. Thereafter, the matter on before the vacation Judge on May 1977. He granted leave to and, then, by consent or the proceeded forthwith to dispose not be Receiver came 23rd appeal, parties, of the appeal. The appointment of the interim Receiver was continued, and the following directions were given:

'The interim Receiver will be in charge of the takings of the exhibition of the pictures at the theatre and the theatre will be run by respondents 1 to 3 under the supervision of the interim Receiver. Whatever takings are received by Respondents 1 to 3 will be handed over to the interim Receiver, who will be entitled to demand all such information and Explanationn as he may think fit from respondents 1 to 3. The interim Rceiver, will pay out of the takings of the exhibition a sum of Rupees 5350/- every week to respondents 1 to 3 without prejudice to the rights and contentions of the parties and will deposit the balance amount in a separate account to be opened by the interim Receiver in a Scheduled Bank. It will before the interim Receiver, to obtain reactions from the learned Civil Judge as to whose pictures should be exhibited at the theatre, whether of the petitioner or of Mr. Gupta to whom a contract appears to have been given by Ram Swarup Rastogi in his capacity as Receiver, in the suit filed by him against respondents 2 and 3. The learned Civil judge will give appropriate directions in this behalf after giving notice to Mr. Gupta, the petitioner and respondents 1 to 3, and after hearing all of them. In the meantime, until such directions are given, which it is hoped will be done within a fortnight from today, the pictures of Mr. Gupta may be continued to be shown at the theatre. Mr. Gupta will be at liberty to apply to the learned Civil judge for directions in regard to payment, if any out of the balance of the takings of the exhibition but such directions will not be given by the learned Civil Judge except after hearing the petitioner.'

15. Pursuant to this order of the Supreme Court, the required directions were given by the Civil Judge, Lucknow, on 31st May 1977. He directed the Receiver to continue exhibiting the films supplied by B. N. Gupta. He further directed that-

'.........................the interim receiver after taking over charge of the Shilpi Theatre shall receive the entire collections from the respondents 1 to 3, who have been ordered to run the cinema under the supervision of the receiver. From the amount so received from the respondents, 1 to 3 'the Receiver shall pay the sum of Rs.5350/- every week to the respondents 1 to. 3 without prejudice to the rights of the parties. Thereafter he will deposit the amount of Rs.1650/- in the account to be opened by him in a Scheduled bank, and from the remain in sum the receiver shall deposit the entertainment tax, show tax, Inr and any other tax which may be levied on the screening of the films. That thereafter from the balance in his hand he shall again deposit the 50% in the bank account and pay the remaining 50% to the films suppliers M/s. Northern India Theatre, Delhi, and its proprietor Sri B. N. Gupta for meeting the expenses of publicity charges, borrowing of films etc.'

16. For a little over three months the Rastogis complied with these orders, except that, according to the Receiver, there was constant delay in depositing the takings into his bank account. He says that immediately after taking charge as Receiver he gave instructions that the takings for one day should be deposited in his bank account on the next day. The Rastogis apparently made the deposits weekly. Neither the order of the Supreme Court nor that of the Civil Judge, Lucknow, are specific on the point. However, it does not matter because there is no complaint that the Rastogis disobeyed any order during this period.

17. Trouble first arose in respect of the takings for the week between 8th and 14th Sept. 1977. The total of the takings in that week was Rs.5,581.24. For some unknown reason, this occasion, contrary to past practice, the Rastogis first paid Rs.350/- as show tax and then deposited Rs.5,231-24 into the bank account of the Receiver. Hitherto, the takings had been deposited without any prior deduction. The Receiver took objection to this deviation as it had not been authorized by him. But, what is more important is that he declined to pay Rs.5,350/- to the Rastogis for this week, because the takings deposited by them were less than that amount. His understanding of the order made by the Civil Judge, Lucknow, was that the sum of Rs.5,350/- was to be paid to the Rast6gis out of the week's takings, and the moneys accumulated in his hands from previous weeks could not be utilized for this purpose.

18. Understandably, the Rastogis were perturbed, and felt aggrieved, when they were not paid any amount for that week. They tried to persuade the Receiver to pay them, but in vain. So, on lst October, 1977, they applied to the Civil Judge, Lucknow, for a direction to the Receiver to pay them Rs.5,350/- for that week. In his reply, the Receiver stated his reasons for not making the payment, but was content to abide by any order that the court might think fit to make. For some reason or other, the application moved by the Rastogis was not dealt with for a considerable time. Ultimately, by an order of 2nd December 1977 the Civil Judge directed the Receiver to pay the amount to the Rastogis. Despite that order, we were told, that the Receiver had still not paid that amount to the Rastogis although the funds in his hands were ample.

19. During the ensuing three weeks, falling between 15th September and 5th October, 1977, every thing went on as normal. The Rastogis deposited the takings with the Receiver, and he paid them their weekly amount. Then, suddenly, from 6th October 1977, the Rastogis completely stopped deposing any of the takings in the account of the Receiver. In other words, the takings for the week ending 12th October 1977 were not deposited; nor for the weeks thereafter.

20. At this time, proceedings on the application filed by Vishwanath under S. 20 of the Arbitration Act had concluded, arguments had been heard, and judgment was reserved. It was delivered on 14th October 1977 by R. N. Agarwal, J. He allowed the application and referred the disputes for arbitration to the Motion Pictures Association. All the objections raised by the Rastogis were overruled, and, in particular, it was held that the agreement dated 2nd January 1973 signed between Vishwanath and Kuldip Rastogi was also binding on the firm Ram Swarup Rastogi and Sons.

21. Immediately after judgment wag pronounced, an application was moved on behalf of Vishwanath for continuing the appointment of the Receiver. Counsel for the Rastogis was present, and was given notice of this application. Time was granted for filing a reply and a rejoinder, and it was ordered that the application be listed for disposal on 25tb October 1977. An interim order was also made extending the appointment of the Receiver on the same terms as those contained in the order of 23rd May, 1977 passed by the Supreme Court. On 25th October 1977 no one appeared on behalf of the Rastogis. Consequently, the interim order was made absolute and was to remain in force till the award was made and filed in court.

22. It is startling that on the next day, 26th October 1977, the Rastogis filed an application in the court of the Civil Judge, Lucknow, praying that the Receiver be 'withdrawn' because the order of the Supreme Court had come to an end, as the High Court of Delhi had disposed of the application filed by Vishwanath under S. 20 of the Arbitration Act and had 'not required that the interim Receiver be continued'. This statement was positively false. The application was supported by an affidavit sworn by Jagdish Rastogi. Notice of this application was sent to Vishwanath. He filed certified copies of the orders made by this court on 14th and 25th October, 1977 along with his reply. Nevertheless, it was argued before the Civil Judge on behalf of the Rastogis that since these orders continued the appointment of the Receiver on the same 'terms' as the order of the Supreme Court, which was intended to have effect only till such time as the proceedings under Section 20 01the Arbitration Act were not concluded, the net result was that the appointment of the Receiver had not been continued. Not surprisingly, this very devious argument was summarily rejected by the Civil Judge in the order which he made on 2nd Dec., 1977.

23. On the next day, 3rd Dec., 1977, the Rastogis filed an application, in this court for the setting aside of the order made ex parte on 25th Oct., 1977. They alleged that their counsel was not able to reach this Court on that day as he was busy elsewhere. This application is still pending, and, thereforee, I will say no more about it. However, this much is clear that the Rastogis did not move this court for setting aside the ex parte order until their hope of getting the Civil Judge to 'withdraw' the Receiver had been obliterated. There is no other Explanationn one can see for their not having applied to this court earlier. And, the dates which I have mentioned speak for themselves,

24. Meanwhile, on 21st Nov., 1977, Vishwanath filed an application praying that the Rastogis be punished for contempt of court because they had not deposited any takings with the Receiver after 14th Oct., 1977. The reason for reckoning the contempt only from 14th Oct., 1977, and not an earlier date, was that until the proceedings under S. 20 of the Arbitration Act were concluded on that date, the order in force was that of the Supreme Court, and the default in depositing the takings with the Receiver from 6th to 13th Oct., 1977 was a disobedience of that order. But, after 14th October 1977 the orders disobeyed were those made by this court. Hence, this court had power to punish for that disobedience.

25. The Rastogis filed their reply to Vishwanath's application on 9th January 1978. They denied that they had committed contempt of court. On 20th March 1978 they filed a supplementary affidavit sworn by Kuldip Rastogi. The application was decided by Joshi J., on 18th May, 1978 and it is that order which is now under appeal.

26. Counsel for both the parties were agreed, and it is otherwise manifest, that for the purpose of the present appeals we must confine our attention to the period between 14th Oct. and 21st Nov., 1977. This is particularly necessary because another application to punish the Rastogis for contempt of court committed after 21st Nov.. 1977 is pending. On this account, I deliberately refrain from mentioning the multifarious proceedings that have occurred after Nov., 1977. However, to complete the story, and not leave it in mid-air, it is necessary to say that even though the contract with B. N. Gupta expired on 31st Dec., 1977, the Rastogis did not thereafter begin to screen pictures supplied by Vishwanath. They screened pictures which they had acquired themselves. It was only when another order was made by Joshi, J., on 18th May, 1978, that they were brought to heel and began to screen pictures supplied by Vishwanath. They re-started screening his pictures from 22nd May, 1978. It is also from that date that the takings again began to come into the hands of the Receiver after a gap of seven months.

27. These, then, are the facts. It is undisputed that the Rastogis did not deposit any box-office takings with the Receiver between 14th Oct. and 21st Nov., 1977, the period with which these appeals are concerned. Nor is it disputed that under the orders made by Agarwal, J., on 14th and 25th October 1977 they were bound to deposit the takings with the Receiver throughout that time. It follows that the Rastogis have disobeyed those orders. It should also follow that the Rastogis have thereby committed contempt of court. But, Mr. R. L. Tandon has presented a formidable argument that, despite the disobedience, there has been no 'civil contempt'.

28. This kind of contempt is defined in S. 2(b) of the Contempt of Courts Act 1971 as 'willful' disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. The core of Mr. Tandon's submission is that, though there has been disobedience, it was not 'willful', and, thus a vital ingredient of the definition is missing. For making good his submission, he has put forth an Explanationn for the conduct of the Rastogis, and then sought to show that it cannot be described as 'willful' in the sense which that word bears in the statute. So the submission has two parts, which need to be considered separately.

29. First, as to the Explanationn for the conduct of the Rastogis. It is undeniable that for three and a half months between 23rd May and 7th September 1977, the Rastogis obeyed the order of the Supreme Court and deposited the takings with Receiver. At any rate, there was substantial, if not meticulous, compliance, such that it gave rise to no complaint either by the Receiver or Vishwanath. From this one is compelled to conclude that during that period, at least, the Rastogis intended to and did obey the order of the Supreme Court. In respect of the week between 13th and 14th Sept. 1977 there was a slight violation of the order in that show-tax was deducted before depositing the takings with the Receiver, but the offence was venial. One has to concede that, at this stage, the Rastogis had not formed any intention to disobey the order of the Supreme Court, because if they had been so minded they would not have held back merely a paltry Rs. 350/- out of the takings for the week. And, even that amount, it is not questioned, was actually used for paying show-tax. Besides, for the next three weeks between 15th September and 5th Oct. 1977, they again handed over the takings to the Receiver without demur or any deductions. Then, why from 6th Oct. 1977 onwards, did they suddenly take it into their heads to totally disregard the orders made by the Supreme Court and this court

30. The answer given by Mr. Tandon is that it was all the fault of the Receiver because of the position he adopted in Sept. 1977. Till the 2nd week of September the takings had always been more than Rs.5,350/-, the amount payable each week to the Rastogis. In that week, for the first time, the takings began to drop to this level. The reason was that, whereas, initially B. N. Gupta had supplied good pictures for being exhibited at Shilpi Theatre, he gradually lost interest as he was being given only 500k of this entitlement in the takings. He, thereforee, began to supply inferior pictures which naturally attracted fewer people.

31. Yet, whatever the takings, the Rastogis were bound by the order of the Supreme Court to kp the cinema going. This entailed a large monthly expenditure comprising the salaries of staff, electricity and telephone bills and other things. Their only means of meeting this expenditure was the amount paid to them weekly. When the Receiver declined to pay them for the week 8th to 14th September 1977 they were aghast, and did not know what to do. They besought the Receiver to pay them, but he would not relent. Somehow, by mustering all their resources and staving off payments, they managed to carry on till the end of the month. Then, heavy payments had to be made, and they did not have the wherewithal. Hence, on 1st October 1977 they applied to the Civil Judge, Lucknow, for a direction to the Receiver to pay them the amount that he had withheld for the week 8th to 14th September. They had hoped they would get relief expeditiously from the court. But for one reason or other, the application was not heard till 2nd December 1977. Meanwhile, they tried to struggle on as best they could. It had, however, been brought home to them that whenever the week's takings were less than Rs.5,350/- the Receiver would not pay their weekly amount.

32. After the 1st week of Oct. 1977 the takings again fell below this figure. The choice before the Rastogis was either to hand over the takings to the Receiver knowing full well that he would not pay them their weekly amount, and thus bring the cinema to a stop, or to disobey the orders of this court and retain the takings so as to run the cinema. Faced with this dilemma, and, having failed to get any relief from the Civil Judge, Lucknow, they were driven to disobeying the orders of this court. The same position continued in the succeeding weeks of the period with which these appeals are concerned. This, in brief, is the Explanationn why the Rastogis did not deposit the takings with the Receiver.

33. By and large, I think, this Explanationn is true. It is contained in this supplementary affidavit sworn by Kuldip Rastogi on 20th March, 1978. To that affidavit there was attached a statement of the daily takings from 6th Oct. 1977 to 4th Jan. 1978 on being served with a copy of this affidavit, Vishwanath moved an application questioning the correctness of that statement, and asked for the production of the account maintained in Form B at the cinema under the supervision of the officers of the Entertainment Tax Department, which he said would be authentic. Since it was disputed whether the account in Form, B had been produced before the single judge, we ordered its production during the hearing of the appeals. Inspection was given to Vishwanath and his counsel, but no discrepancy has been pointed out in the statement that was attached to Kuldip Rastogi's affidavit,

34. This statement shows that the average of the takings between 14th October and 21st November 1977, after deducting various taxes and outgoings, was less than Rs.5,350/- per week it seems clear that if the Rastogis had deposited the takings with the Receiver during this period, he would, in the aggregate, have had to pay them more than they deposited with him. Thus, even financially, they would have gained by depositing the takings with the Receiver. Certainly, this gives support to the Explanationn given on behalf of the Rastogis. And, there is no doubt that the Receiver had taken the view that if the takings in any week were less than Rs.5,350/- he was not to pay the Rastogis any amount for that week. This is apparent from his reply to the application filed by the Rastogis before the Civil Judge on lst October 1977.

35. Except in the manner explained the conduct of the Rastogis is incomprehensible. After all, they had complied with the order of the Supreme Court till 5th October 1977 and something must have happened which caused them. to depart from that course. Their conduct is so strange and inconsistent, that it is not believable that there is no rational Explanationn. No better Explanationn has been propounded on behalf of Vishwanath. On his behalf, the only thing said was that the Rastogis were dishonest folk and were willing to take any risks for the sake of money, even contempt of court. Yet, till the second week of October the innate dishonesty imputed to them was not powerful enough to give them sufficient courage to defy the court. So, why did this alleged trait of their character assert itself so force fully in the second week of October 1977

36. Of course, there are some small flaws in the Explanationn. It has been contended that the Rastogis never complained that the orders passed by the Supreme Court and this court were putting an impossible financial burden upon them. They did not say so in their application filed on 3rd December 1977 to set aside the ex parte order of 25th October 1977, nor even in their reply to the application filed by Vishwanath on 21st November 1977 seeking to have them punished for contempt. Pleas of this kind, it was said, were taken for the first time in the supplementary affidavit sworn by Kuldip Rastogi on 20th March 1978 and were afterthoughts.

37. This criticism is not quite correct. In the application filed by the Rastogis on lst October before the Civil Judge, Lucknow, it was said that they 'have to spend huge amount on maintenance, upkeep, electric charges etc.' for which purpose the weekly amount of Rs.5,50/received by them was utilised, and in consequence of the Receiver not having paid them for the week 8th to 14th September 1977 they were 'feeling great hardship in running the cinema.' There is a similar strain in other applications filed by the Rastogis in the ensuing period and, also, in their reply filed on 9th January 1978 to the application to have them punished for contempt. It is true that the plea appears in full blossom only in Kuldip Rastogi's supplementary affidavit; still, it is discernible, howsoever inadequately expressed, in the application to the Civil Judge on 1st October 1977 and other applications made thereafter.

38. It may also be asked that, if B. N. Gupta was supplying inferior pictures, why did the Rastogis not get an order from the court to screen pictures supplied by Vishwanath? The answer they give is that B. N. Gupta had filed a suit and obtained a decree against them on 1st September 1977 restraining them from 'interfering with the exhibition of films' supplied by him. Hence, they were left with no option. It is true that the Rastogis did not contest that suit, but naturally they could not because they had always maintained that the agreement with B. N. Gupta was valid. In any case, the Rastogis cannot be held responsible for the volume of the takings as that depended on the success of the picture screened, and they had no say in its choice.

39. Or, again, if they were unable to get an order expeditiously from the Civil Judge, Lucknow, on their application of 1st October 1977, why did they not move this court for an appropriate order? And, if the orders of 14th and 25th October, 1977, made by this court, were playing such havoc with them, why did they not move this court to have those orders varied or recalled? The reply on behalf of the Rastogis is that they were confused as to which was the proper court to be moved for this purpose, and, thereforee, they did not proceed further. Although it is doubtful that the Rastogis were in any state of perplexity it certainly does appear from the proceedings in the case that there was considerable confusion all round whether, after 14th October, 1977, the Receiver existed by virtue of the order of this court or that of the Supreme Court. Ultimately, Vishwanath filed an application in the Supreme Court for clarification, and, in an order made on 24th April, 1978, it was ruled that after 14th October the operative orders were those passed by this court.

40. Also, how is one to overlook the fact that on 26th October the Rastogis blatantly misrepresented in an application to the civil Judge, Lucknow, that the High Court of Delhi had not continued the appointment of the Receiver? This was patently contrary to the record, and the statement was most reckless. Mr. Tandon had no Explanationn to offer, but he contended this was not the subject matter of the present charge of contempt against the Rastogis, and whatever the other consequences to which they may have made themselves liable, it was not a matter to be used against them in the present case. He said, that if the matter had been inquired into, perhaps a satisfactory Explanationn may have emerged. Not without reluctance, I think, it has to be accepted that this submission is right.

41. But, when all is said and done, how does the matter rest? I still find it impossible to believe that from 6th October 1977 the Rastogis began to disobey the order of the Supreme Court, and, afterwards, the orders made by this court, for no reason at all or because they suddenly ceased to be afraid of the law. Viewing the variations in their behavior from 23rd May 1977 onwards alongside the variations in the takings, the Explanationn given on their behalf becomes irresistible. It seems extremely likely that in October 1977 they found themselves in a quandary and, out of the limited alternatives available, one worse than the other, they decided, rather foolishly, that, in the circumstances, the least detrimental was to disobey the orders of this court. It may be that some or all of their actions were motivated by spite against Vishwanath, but for them to disobey the orders of the court there must have been something more. I do not believe that they flouted the orders simply out of bravado.

42. To this extent it has to be conceded in favor of the argument that was presented, that the Rastogis were not disobeying the orders in a spirit of revolt or intending to be refractory or recalcitrant. At the same time, it is perfectly obvious that the Rastogis were fully aware of what they were doing and knew what it was all about. This was accepted by Mr. Tandon, but, he contended, that the disobedience of the Rastogis could not be classed as 'willful' unless it could be proved to be 'contumacious.'

43. That brings me to the second part of the submission. It turns on the meaning of the word 'willful., Although a hundred years have gone by, I do not think anyone has yet succeeded in improving on the lucid and terse exposition of Bramwell, L J., in Lewis v. The Great Western Railway, Company, (1077) 3 Qbd 195, where he said:

'willful misconduct' means misconduct to which the will is a party, something opposed to accident or negligence;--------------'

The same idea was expressed by Lord Russell, C. J., in R v. Senior, (1895) All Er Rep. 511 in different words:-

'Willfully means done deliberately and Bowen, L. J., put up more elaborately in re Young and Harston's contract, (1855) 31 Cil D. 168, as follows:

The other word which it is sought to define is 'willful'. That is a word of familiar use in every branch of law and although in some branches of the law, it may have a special meaning, it generally, as used in Courts of law, implies nothing blamable, but merely that the person of who section or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he Is doing, and is a free agent. 'These last words fit the conduct of the Rastogis most aptly. If this is the meaning of 'willful' in the definition of 'civil contempt', the Rastogis are definitely guilty.

44. But ' Mr. Tandon argued that the word 'willful' involved something more than this if not generally, at any rate, in the context of the definition. According to him, the will being a party to the disobedience was not enough: there, further, had to be an element of obstinacy, rebellion or defiance. He relied on Worthington v. Ad-lib Club, Ltd., (1964) 3 All Er 674, and that case certainly supports him. There Stirling, J., was construing the words 'willfully disobeyed' in Order 42 rule 31 of the Rules of the Supreme Court in England. The rule provides modes of enforcing any judgment or order, against a corporation, which, it has 'willfully disobeyed.' Stirling, J., held that to come within the rule it was necessary to establish a 'contumacious disregard, of an order. He reached that conclusion not of his own volition but because he felt himself bound by, what he thought, was the ratio of the decision of the Court of Appeal in Fairclough & Sons v. Manchester Ship Canal Co., (1897) Wn 7. And, for the same reason he did not follow the judgment of Chitty, J., in A. G. v. Walthamstow Urban District Council Walthamstow Sewage Question, (1895) 11 Tlr 533, and that of Warrington, J., in Stancomb v. Trowbridge Urban District Council, (1910) 2 Ch. 190.

45. A little research on my own has revealed that, in subsequent cases, the judgment of Stirling, J., has been dissented from, and his understanding of the decision of the Court of Appeal in Fairclough & Sons v. Manchester Ship Canal Co., (1897) Wn 7, has been held to be wrong. In Steiner Products, Ltd. v. Willy Steiner, Ltd., (1966) 2 All Er 387 Stamp, J., said:

'I do not think that the Court of Appeal intended to use the word 'contumaciously' as meaning something different from 'willfully,' for to do so would be to put a gloss on the words of the order which they will not, in my judgment, tolerate. Chitty, J., took the view that disobedience which was worse than casual, accidental or unintentional must be regarded as willful, in A. G. v. Walthamstow Urban District Council; Walthamstow Sewage Question and Warrington, J. in Stancomb v. Trowbridge Urban District Council, took a similar view.'

46. The reason for the mistake made by Stirling, J., was explained by Megaw, P., in Agreement of the Mileage Conference Group of the Tyre Manufacturers' Conference, (1966) 2 All Er 849. It appears that only an 'abbreviated eight line report in (1897)WN 7' of the decision of the Court of Appeal in Fairclough v. Manchester Ship Canal Co. was cited to Stirling, J. Had he been shown ',the fuller and better report in (1897) 41 Sol J. 225, he would have seen that decision in a different light. Megaw, P., and his colleagues on the Restrictive Practices Court, accepted the view of the law expressed by Warrington, J., in Stancomb v. Trowbridge Urban Council. In that case Warrington, J., had said:-

'........ if a person or a corporation is restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and it is no answer to say that the act was not 'contumacious in the sense that, in doing

it, there was no direct intention to disobey the order. I think the expression 'willfully' in Order Xlh, R. 31, is intended to exclude only such casual or accidental and unintentional acts as are referred to in Fairclough v. ancestor Ship Canal Co. I think this view, though not of course expressed in the same words, is to all intents and purposes the view expressed in Attorney-General v. Walthamstow Urban District Council.

47. This accords completely with the quotation from Bramwell, L. J., with which I started. It follows that 'willful' has the same meaning in the law of contempt as in other branches of the law. I can see no reason why in the matter of contempt it should have some special or peculiar meaning, Bowen, L, J., said in re Young and Harston's Contract (1855) 31 Ch. D. 168, that it 'is not a term of art.' And, the ordinary meaning of willful,' as defined in the Concise Oxford Dictionary, is that for which compulsion or ignorance or accident cannot be Pleaded as an excuse, intentional, deliberate ..........'.

48. It remains to mention that, more recently, in Knight v. Clifton (1971) 2 All Er 378, the Court of Appeal has itself disapproved the view of Stirling J. and endorsed that of Megaw, P. Impliedly, if not expressly, the judgment of Stirling, J., has been overruled for Sachs, L. J., agreeing with Russell, I.. J., said that 'contumacity need not be proved' in order to establish 1willfulness.1

49. Many Indian cases use the word contumacious, in describing contempt. Almost invariably they use it disjunctively with 'willful' or 'deliberate': See K.J. Pathare v. S. J. Pathare : (1971)73BOMLR616 ; Butalia H. S. v. Subbash Kumar (1974) 1 S Lr 23 and Debabrata Bandopadhyay v. State of West Bengal : 1969CriLJ401 . That, in it self, indicates that 'contumacious' is used as a synonym, and not for the purpose of adding something more to the meaning of 'willful' than it otherwise bears. The English cases to which I have referred support this inference. Besides, 'civil contempt' is now defined by the statute, and the word it employs is willful'.

50. Now, the very Explanationn which has been offered on behalf of the Rastogis, proceeds on the basis that their failure to deposit the takings with the Receiver, during the relevant period, was not casual or accidental or unintentional' Nor was it the result of 'inadvertence' or negligence. It was a calculated and a 'deliberate, decision to which their will was very much 'a party, beyond a doubt their conduct was 'willful'. They chose to play with fire, and must accept the consequences. In my opinion, they are clearly guilty of civil contempt.

51. It was next contended that even if the Rastogis had committed contempt, it was not of 'such a nature' as to warrant any punishment. The argument is based on Section 13 of the Contempt of Courts Act. That section says that:

'Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under 'this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice!

Mr. Tandon maintained that the failure of the Rastogis to deposit the takings with the Receiver did not substantially' interfere or tend to interfere 'with the due course of justice! The reasons which he advanced were more or less the same as those for his submission that the disobedience of the Rastogis was not 'willful.' We greatly emphasized the fact that no monetary loss had been caused to 'Vishwanath or anyone else. For, as was apparent from the accounts, the takings were not enough even to pay the Rastogis their weekly amount, and there was no possibility of any surplus. Indeed, he argued, the loss, if any, had been to them selves, because if they had paid over the takings to the Receiver, they would have received back more from him. Again, we were reminded, that the Rastogis had made no default till 5th October, 1977 and their conduct afterwards was entirely provoked by the attitude of the Receiver. And, that in the circumstances prevailing after - 5th Oct., 1977, the Rastogis had little or no option but to disobey the orders of the court if the cinema was to be run. Having regard to all these aspects, we were urged, to treat the contempt as merely 'technical' and refrain from imposing a sentence.

52. Apart from the probable fact that no monetary loss has resulted to Vishwanath or any other person from the contempt committed by the Rastogis the rest of these points are not germane to the application of Section 13. Under that section the only question for consideration is whether the contempt has interfered 'substantially' with the 'due course of justice' or 'tends, to do so. The reasons why the contempt was committed, and any mitigating factors, are all irrelevant.

53. The key word in the section is 'substantially'; and, in deciding whether the interference 'with the due course of justice' is substantial or not, what one is required to look at is the 'nature' of the contempt. While weighing the pros and cons, it had further to be remembered that the interference need not be actual. A mere tendency in that direction is sufficient. However, this kind of surface analysis of the section does not take one very far. It only serves to fix' the points of reference when dealing with a concrete case.

54. It is obvious that the section is an application of the maxim 'De minimise non curat lex'. The doctrine that 'the law does not concern itself about trifles' has 'frequent practical applications, of which many examples are collected in Broom's Legal Maxims (10th ed.) at pp. 88-90. A well-known statutory instance is Section 95 of the Indian Penal Code. It excludes from the concept of an 'offence' anything which causes harm 'so slight that no person of ordinary sense and temper would complain of such harm.'

55. Ever since the law of contempt has existed, it has been an established rule that the courts will not punish for a contempt, which is merely 'technical'. The word 'substantial, has also been used in similar contexts to convey the same idea. Thus, in Ananta Lal Singh v. Alfred Henry Watson, : AIR1931Cal257 Rankin, C. J. said:

' ....... the Court's jurisdiction in contempt is not to be invoked unless there is real prejudice which can regarded as substantial interference with the due course of justice.' I interject here to say, that this was probably the draftsman's inspiration for Section 13 as it seems to echo those words. The judgment continues:

'It is not every theoretical tendency that will attract the action of the Court in its very special jurisdiction. The purpose of the Court's action is a practical purpose and, it is reasonably clear on the authorities that this Court will not exercise its jurisdiction upon a mere question of propriety where the tendency of the article to do harm is slight and the character and circumstances of the comment is otherwise such that it can properly be ignored. This is no new law .........'

I would regard this as a compendious statement of the right approach to the matter. It has been specifically approved in Rizwan-Ul-Hasan v. State of Uttar Pradesh, : 1953CriLJ911 .

56. In Brahma Prakash Sharma v. State of Uttar Pradesh, : 1954CriLJ238 and In re: P. C. Sen, : 1970CriLJ1525 the contempt was held to be 'technical'; in Rama Dayal Markarha v. State of Madhya Pradesh, : 1978CriLJ917 , it was held that it was not. The test applied in all these cases was the likelihood of interference with 'the due course of justice.' But, the likelihood of interference with the 'due course of justice' is an essential ingredient of all contempt. It is the very reason for the thing. Thus, the question whether a contempt has been committed, and whether it ought to be punished tend to merge.

57. Nevertheless, they are different questions. This is brought by Lord Reid in Attorney-General v. Times News-papers Ltd. (1973) 3 All Er 54. Dealing with the case against the Times for having published an article intended to influence the conduct of a litigant, namely the manufacturers of the drug thalidomide, he says:

'I think, agreeing with Cotton Lj in his judgment in Hunt v. Clarke that there must, be two questions: first, was there any contempt at all? and, secondly, was it sufficiently serious to require or justify the court in making an order against, the respondent? The question whether there was a serious risk of influencing the litigant is certainly a factor to be considered in what course to take by way of punishment, as is the intention with which the comment was made. But it is I think confusing to import this into the question whether there was any contempt at all or into the definition of contempt.

I think the true view is that expressed by Lord Parker Cj in R v. Duffy, ex parte Nash that there must be 'a real risk as opposed to a remote possibility.' That is an application of the ordinary de minimise principle. There is no contempt if the possibility of influence is remote. If there is some but only a small likelihood, that may influence the court to refrain from inflicting any punishment. If there is a serious risk some action may be necessary. And I think that the particular comment cannot be considered in isolation when considering its probable effect. If others are to be free and are likely t6 make similar comments that must be taken into account.'

Lord Diplock concurred, and expressed the distinction as follows:

'The courts have thereforee been vigilant to see that the procedure for committal is not lightly invoked in cases where although a contempt has been committed there is no serious likelihood that it has caused any harm to the interests of any of the parties to the litigation or to the public interest. Since the court's discretion dealing with a motion for committal is wide enough to entitle it to dismiss the motion with costs despite the fact that a contempt has been committed if it thinks that the contempt was too venial to justify its being brought to the attention of the court at the distinction between conduct which is with: ' n the general concept of 'contempt of court' and conduct included within that general concept, which a court regards as deserving of punishment in the particular circumstances of the case, is often blurred in the judgments in the reported cases. The expression 'technical contempt' is a convenient expression which has sometimes been used to describe conduct which falls into the former but out side the latter, category; and I agree with my noble and ' learned friend, Lord Reid, that given conduct which. Presents a real risk as opposed to a mere possibility of interference with the due administration of justice, this is at very least a technical contempt. The seriousness of that risk is relevant only to the question whether the contempt is one for which the court, in its discretion, ought to inflict any punishment and, if so, what punishment it should inflict.'

58. I think, this is what underlies the word 'substantial' in S. 13 of the Act. It poses for consideration the 'seriousness' of the contempt. If the 'degree of harm caused' to the 'administration of justice' is slight and beneath notice, (the) courts will not punish for contempt': See Baradakanta Mishra v. Registrar of Orissa High Court : 1974CriLJ631 and Registrar of the Orissa High Court v. Baradakanta Misra : AIR1973Ori244 .

59. The argument of Mr. Tandon concentrates exclusively on the monetary effects of the contempt. Since, on the present facts, there were none to the detriment of Vishwanath, he would have us hold that the contempt was 'theoretical' or 'trifling'. It is implicit on his submission that the matter has to be judged simply as if it were a dispute between the parties. It is also implicit that what one is concerned with is the actual results flowing from the contempt, and not the possibilities. In my opinion, both these assumptions are fallacies.

60. Although 'civil contempt' is designed to enforce an order or an undertaking, it has always been recognised that it has a two-fold character: See The Aligarh Municipal Board v. Ekka Tonga Mazdoor Union, : 1970CriLJ1520 . The whole subject is illuminated by Cross J., in the following passage in Phonographic Performance, Limited v. Amusement Caterers (Peckham) Ltd., (1963) 3 All Er 493:

'There is no doubt here that the order of the court was willfully disobeyed. -There is no question here of unintentional disobedience of the order, because the defendant company and the directors never tried to obey it or thought of obeying it until they instructed a solicitor. On the other hand, it has now been complied with. What is the position of the court in a case of civil contempt in those circumstances? As is pointed out in Halsbury's Laws of England, where there has been willful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt, what is called contempt in procedure

'bears a two-fold character, Implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the state, a penal or disciplinary jurisdiction to be exercised by the court In the public interest.'

So civil contempt may bear much the same character as criminal contempt. I think that that is brought out very clearly by Rigby, Lj in his judgment in the case of Seaward v. Paterson. In reference to an argument addressed to him by counsel, he says:

'Unless I entirely misapprehend that argument, it went so far as that the court has no jurisdiction to commit for contempt by way of punishment; but that the jurisdiction is an ancillary Jurisdiction in order to secure that the plaintiff in a suit shall have his rights. I do not think that can be for a moment supported.'

Then later he says:

'That there is a Jurisdiction to punish for contempt of court is undoubted: (I think that Rigby, L.J. is talking here of civil contempt, not only of criminal contempt). It has been exercised for a very long time - far longer than any of us can remember. That punitive jurisdiction is founded upon this, that it is for the good not of the plaintiff or a party, but for the good of the public, that orders of the courts should not be disregarded...' I think, thereforee, that although the order has now been complied with, I must consider whether it can be said in this case that the directors of the company were deliberately setting the court at defiance and were really treating the order of the court as not worthy of notice. If that is the true view, then, notwithstanding that the order has now been complied with, it may well be that a punishment ought to be inflicted on them.'

61. This passage was adopted as an accurate statement of the law by the Court of Appeal in Jennison v. Baker, (1972) 1 All Er 997. Lord Salmon said: 'The public at large, no less than the individual litigant, have an interest, and a very real Interest, in justice being effectively administered.' With reference to the classification of contempt as criminal and civil he observed: 'I think that at any rate today, this is an. unhelpful and almost meaningless classification.' As he pointed but later in his judgment 'the court n-Aght well send the defendant to prison even if the plaintiff, having applied for attachment, relented and asked that the order in his favor should not be enforced., In a book on the law of Contempt by Borrie and Lowe (1973 ed.) there is an interesting and useful discussion on the distinction between civil and criminal contempt at page 369. The conclusion at page 374 is that 'the law of civil contempt has been assimilated with that of criminal contempt, and there now exist very few distinctions between the two'.

62. So, my first answer to the argument of Mr. Tandon is that the 'public interest' is involved. Secondly, the passages which I have quoted from the judgment of Lord Reid and Lord Diplock in the Times' case indiacte that what has to be considered is the 'possibility, of an interference with the due course of justice. As I have stressed already, S. 13 itself uses 'tends in the alternative, and the authorities hold that an actual interference is not necessary; See Brahma Prakash Sharma v. State of Uttar Pradesh : 1954CriLJ238 and In re: P. C. Sen, : 1970CriLJ1525 . But, of course, the 'risk of interference must be real'.

63. In the present case, the defense of the Rastogis is that they decided to disobey the orders of this court because they were compelled by the circumstances. When those circumstances are scrutinised in detail it turns out that the compulsion amounts to no more than calculating financial options. After all, even if the cinema had closed for a while till orders were obtained from the courts, no great tragedy would have occurred. At most, there might have been some temporary financial loss to the Rastogis. I do not think that any court which hopes to function can allow its orders to be subordinated to private interests. If such a defense were allowed to pass, there would be no end. Every litigant could find a cogent personal reason for disobeying the court. This shows how necessary and important it is to nip the evil in the bud; and, how fraught with serious implications for the administration of justice the conduct of Rastogis is. To my mind, this is eminently a case in which the authority of the court must be effectively vindicated so that others are not tempted or encouraged to tread the same path. It must be demonstrated to public eyes that an order of the court cannot be ignored without disastrous repercussions.

64. Moreover, every moment of disobedience had inherent in it a 'real risk' of 'substantial' financial loss to Vishwanath. Who can say whether the Rastogis would have re-started depositing the takings with the Receiver when there was a surplus? We have not gone into the accounts for the period after 21st Nov., 1977 for the reasons I have already stated. We do not know how they conducted themselves later. But, we do know that, notwithstanding the order made by the Civil Judge, Lucknow, on 3rd Dec., 1977 by which their apprehension regarding the intention of the Receiver should have been allayed, they did not start complying with the orders of this court until coerced to do so by the second order of 18th May 1978. Taking everything into account, in my opinion, the contempt committed by the Rastogis was certainly not 'theoretical', 'technical', 'trifling' or 'beneath notice'. On the contrary, I think it was most t serious', and tended very 'substantially' to interfere with the due course of justice. thereforee, I can see no scope for applying S. 13 here.

65. That leaves the question of punishment. At the commencement of the hearing of these appeals, written apologies, in the form of affidavits sworn by all the Rastogis, were placed on record. The apologies are unconditional. They again attempt to explain the reasons for not complying with the orders of this, court, but I have already found those reasons to be unacceptable. Insofar as these apologies aver that the Rastogis 'had no intention at any time' to disobey the orders of this court, they do not accord with their one and only defense. I have already held that their disobedience was 'willful'. However, the question now to be considered is whether these apologies are genuine and sincere.

66. In their reply to the application filed by Vishwanath to have them punished for contempt, the Rastogis do not display the smallest trace of any contrition. Nor even in the supplementary affidavit sworn by Kuldip Rastogis. At no time in the course of the proceedings before the single Judge was an apology tendered or regret expressed on their behalf they raised many legal pleas and sought to justify what they had done.

67. In his order under appeal, the single Judge has observed: 'There is no such apology tendered as should deserve any consideration.' Although in the affidavits they have now filed, 'the Rastogis say that they, and their counsel, tendered apologies before the single judge, they have vouchsafed no particulars. They do not disclose when the apologies were tendered, and what were the terms. Admittedly, no apology was tendered to the single Judge in writing.

68. No doubt, an apology may be oral and may be tendered at any stage: See Dinabandhu Sahu v. State of Orissa, : 1972CriLJ39 and Butalia H. S. v. Subhash Kumar, (1974) 1 Serv Lr 23. The Explanationn to S. 12 of the Contempt of Courts Act now enacts that it may even be 'qualified or conditional', provided it is made bona fide- See K. Ramadas Shenoy v. Chief Officer, Town Municipal Council Udipi : 1976CriLJ722 . But, if it is not tendered initially, it is bound to attract a great deal of suspicion: See Mulkh Raj v. State of Punjab : 1972CriLJ754 ; Debabrata Bandopadhyay v. State of West Bengal : 1969CriLJ401 and M/s. Kalloo Mal Visheshwar Prasad v. Secy. to Govt. of U. P., Lucknow . To dispel that suspicion, there ought to be some satisfactory Explanationn for the delay.

69. Here, no Explanationn whatsoever has been offered. The only Explanationn I can see is that the Rastogis thought that, somehow, they might still get away. Probably, when the matter was argued before the single Judge, and his mind had become known, they made some halfhearted gesture which he rightly rejected. I can see no reason for, in any manner, doubting the correctness of his observation which I have quoted. Even at that late stage the Rastogis did not care to put their apologies in writing. It is only much afterwards, when they had been found guilty and sentenced, and when these appeals actually, came on for hearing, that, for the first time, they thought fit to do so. They were reduced to this state of submission by slow degrees when pursued inexorably. by, the law. I am convinced that they are not really penitent, and their apologies are a mere expedient to ward off the court, In any case, on the facts and circumstances of this case, I do not think an apology would at all be sufficient atonement. thereforee, I decline to accept the apologies.

70. According to & 12 (3) of the Act the court should not order the detention in a civil prison of a person found guilty Of civil contempt unless 'it considers that a fine will not meet the ends of justice.' The single Judge was of the opinion that, as regards Kuldip Rastogi, a fine would not do. I agree with him. The maximum fine permissible is Rs. 2,000/-. Having regard to the large financial stakes involved in the case, a fine of that amount could not possibly make any impression on Kuldip Rastogi. He would feel that he has been let off for a song, and disobeying the orders of the court was riot so expensive, after all. I know that in contempt proceedings a court not act vindictively or at the of the aggrieved party: See Gian Bali v. L. P. -Singh, 1968 Delhi Lt Uma Dutt v. R. K. Sardana, Air Del 6 and Gulab Singh v. Ramji : AIR1975All366 . But the punishment must be deterrent: See Mrs. Damayanti G. Chandramani v. S. Vaney, 1966 Cri Lj 9 (Bom). Especially, if the contemner has been defiant and shown no sign of remorse: Aligarh Municipal Board v. Ekka Tonga Mazdoor Union, : 1970CriLJ1520 and Shri Baradakanta Mishra v. Registrar of Orissa High Court, : 1974CriLJ631 . And, more so, if it be not the first time that he has disobeyed an order of the court: See M/s. Kalloo Mal Visheshwar Prasad v. Secy. to Govt. of U. P., Lucknow .

71. There is on record the copy of an order dated 13th July made by Mr. N. L. Kakkar, Additional District Judge, Delhi. He held that-, in the case before him Ram Saroop' Rastogi & Sons had disobeyed an Injunction issued against them, and attached their property worth Rs.1000/-. It thus, transpires that this is not the first occasion on which the Rastogis have fallen foul of the court. In these circumstances, the single Judge was perfectly justified in ordering Kuldip Rastogis to be detained in the civil prison for three months, and imposing a fine of Rs.2,000/on the firm.

72. Vishwanath, by his appeal, wants each one of the Rastogis to be detained in the civil prison for the maximum period permissible in law. He would not spare even Phoolmati, who probably has no active role in the firm, and does not know or understand what her husband and sons are doing. The court cannot allow itself to become an instrument of Vishwanath's wrath. The Rastogis deserve the punishments awarded by the single-Judge, but no more. Kuldip Rastogi has rightly been singled out for civil imprisonment because he seems to have been the prime moving spirit on their side.

73. For these reasons, I would dismiss both these appeals, but, in the circumstances, leave the parties to bear their own costs.

V.S. Deshpande, C. J.

74. I agree.

75. Appeals dismissed.


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