In the High Court At Calcutta Special Jurisdiction (Contempt) Original Side CC60of 2015 Sanjay Jain -Vs.Raj Kumar Saha & Anr.
Before : The Hon’ble Justice Arijit Banerjee For the petitioner : Mr.Rajeev Kumar Jain, Adv.Ms.Reena Batth, Adv.For the contemnors : Mr.Reetobroto Mitra, Adv.Mr.S.Dasgupta, Adv.Mr.A.Gupta, Adv.Heard On 19.06.2015 : 10.04.2015, 24.04.2015, 05.06.2015, 10.07.2015, 21.07.2015, 31.07.2015, 14.08.2015, 04.09.2015, 04.12.2015, 18.02.2016, 10.06.2016, 30.06.2016, 07.08.2015 11.12.2015 19.07.2016 CAV On : 19.07.2016 Judgment On : 04.10.2016 Arijit Banerjee, J:(1) In this contempt application the petitioner alleges violation of this Court’s judgment and order dated 24 December, 2014 passed in GA2865of 2013 filed in CS No.331 of 2013 (Sanjay Jain-vs.-Raj Kumar Saha & Ors.).(2) The genesis of the case lies in the making of a Bengali film called ‘Black Mmail’.
The alleged contemnors (hereinafter referred to as the ‘Sahas’) appear to be carrying on, inter alia, the business of producing films in co-partnership through a firm.
At the request of the Sahas the petitioner claims to have invested substantial sums of money in the making of the said film.
A Memorandum of Understanding dated 10 January, 2013 appears to have been executed between the petitioner on one hand and the Sahas on the other inter alia to the following effect: (a) The amount of Rs.14 lacs paid by the petitioner to the said firm by cash/cheque was duly acknowledged.
(b) The petitioner was entitled to the profit to the extent of 40 per cent of the entire transaction with regard to the said film and if any loss was suffered by the said film then the same was to be shared equally.
(c) Just after the release of the film, out of the amount realized by the said firm from the market, firstly the petitioner would be entitled to receive Rs.14 lacs without deducting any expenditure.
(d) The sum of Rs.14 lacs shall be treated as charge on the partnership firm till repayment of the said advance to the petitioner.
(e) The petitioner will have his right over the said film on the fiRs.release and its subsequent releases and such right would extend to all satellite rights, video rights and audio rights.
(f) The D5cassettes for UFO and Quebe Digital, DG Beta cassette for satellite, Beta cassette for local channel, in all six cassettes of the said film will be handed over to the petitioner without making any copy thereof.
The said film was released on 25 January, 2013.
However, the Sahas did not return the sum of Rs.14 lacs to the petitioner nor handed over the aforesaid six cassettes to the petitioner.
(3) On the basis of the aforesaid allegations, the petitioner filed CS No.331 of 2013 in this Court claiming inter alia, a decree for Rs.64,81,982/- and perpetual injunction restraining the Sahas from making over the Digital and Beta cassettes of the film to any person other than the petitioner.
In the said suit, the petitioner filed an interlocutory application being GA No.2865 of 2013.
The said application was disposed of by a judgment and order dated 24 December, 2014, the operative portion whereof is as under:“In view of the aforesaid there will be an order of injunction restraining the respondent Nos.1, 2 and 3 from realizing money on account of the film ‘Black Mmail’ from any of the other respondents or if already so realized, from using the same without keeping apart a of sum of Rs.27,65,000/- upon intimation to the petitioner.
As regards the D5cassettes for UFO and Quebe Digital and DG Beta Cassette for satellite and Beta cassette for local channel of the film ‘Black Mmail’, the same were to be handed over to the plaintiff in terms of the memorandum of agreement in terms of the clause 13 of the memorandum dated 10th January, 2013.
Accordingly the respondent Nos.1, 2 and 3 are directed to hand over the aforesaid cassettes to the Advocates on record of the petitioner and the respondent Nos.1, 2 and 3 who will hold such cassettes as joint receivers without remuneration till the disposal of the suit.
The order of injunction passed above will also continue till the disposal of the suit.” It is this order, violation of which is alleged by the petitioner in the present application.
(4) Mr.Jain, Learned Counsel appearing for the petitioner, submitted that the intent of the said order is that whatever amount has been realized by the Sahas on account of the said film should not be utilized without keeping apart the sum of Rs.27,65,000/-.
The scope of the order is not that the amount which has been realized and allegedly spent prior to passing of the order, is not required to be kept apart.
He referred to the profit and loss account of the partnership firm of the Sahas for the period 01.04.2011 to 30.09.2013 and submitted that the Sahas have admitted that they received a sum of Rs.3 lacs towards hall collection, Rs.15 thousand towards sale of Assam rights of the film and Rs.15 lacs on account of satellite right sales.
However, the said amount has not been kept apart.
(5) As regards the second part of the order, learned Counsel submitted that the Digital and Beta cassettes have not been handed over to the Joint Receivers appointed by this Court and the Sahas are hence in clear violation of the order.
(6) Mr.Reetobroto Mitra, Learned Counsel appearing for the Sahas submitted that after 18 September, 2013, when the interim order was passed by this Court on the aforesaid application, the Sahas have not collected any money at all from its distributors or from anybody else in connection with the said film.
The collections were made and were utilized to pay all the dues of various parties prior to 18 September, 2013.
He referred to pages 76 to 109 of the affidavit-in-opposition which are the statements showing collections and disbursements made by the Sahas in connection with the said film.
He submitted that all money collected were distributed by the Sahas to the persons involved with the making of the said film i.e., the Director, ActORS.Script Writer and other technicians.
(7) Mr.Mitra further submitted that it was impossible for his clients to collect any money from the other defendants in CS No.331 of 2013 since the petitioner, on the strength of the aforesaid Memorandum of Understanding started harassing the Sahas.
The petitioner made attempts to create financial trouble for the Sahas by creating cloud over the title and ownership of the said film.
As a result, the Sahas had to assign the satellite right of the said film at a very low price.
The petitioner also published notification in the bulletin of the East India Motion Pictures Association warning the exhibitors in the film business not to deal with the said film which caused serious damage to the business of the said film.
(8) As regards the second portion of this Court’s order, Mr.Mitra submitted that the Sahas have sold the D5cassette for UFO and Quebe Digital and DG Beta cassette for satellite and Beta cassette for local channel to three entities being M/S.Channel B, M/S.Channel B Entertainment and M/S.BL Agarwal & Sons (HUF).In this connection he referred to three documents dated 8 March, 2013, 13 March, 2013 and 6 May, 2013 which appeared to be signed by the common proprietor of the said three entities.
Hence, it is impossible to comply with the second portion of the said order which directed the Sahas to hand over the cassettes to the Joint ReceiveRs.(9) Learned Counsel for the petitioner disputed the authenticity of the statements of collection and disbursal of money in connection with the said film as disclosed and relied upon by the Sahas.
He also disputed the authenticity of the three documents which the Sahas have relied upon in support of their submission that the cassettes of the said film were sold to third parties long before the order dated 24 December, 2014 was passed.
(10) I have considered the rival contentions of the parties.
2(a) of the Contempt of Courts Act, 1971 (in short the ‘Act’) defines contempt of court as meaning civil contempt or criminal contempt.
In the present case, we are concerned with civil contempt.
2(b) of the Act defines civil contempt as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
(12) From the definition section, the following ingredients of civil contempt can be deciphered; (a) There must be a judgment or decree or direction or order of a Court restraining a party from doing a particular act or directing that party to do a particular act or an undertaking given by that party to a court.
(b) That party must have knowledge of the judgment or decree or direction or order of the court.
(c) That party must have acted in disobedience to the judgment or decree or direction or order or in breach of the undertaking given to the court.
(d) Such disobedience of the judgment or decree or direction or order or breach of undertaking must be wilful.
(13) Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with orders of court.
In T.N.Godavarman Thirumulpad-Vs.-Ashok Khot, (2006) 5 SCC1 the Hon’ble Apex Court observed that in our democratic polity under the constitution, the concept of ‘Rule of Law’ serves as an aorta in the anatomy of our democratic system.
The law is supreme.
Everyone, whether individually or collectively is unquestionably under the supremacy of law.
Whoever he may be, however high he is, he is under the law, no matter how powerful he is and how rich he may be.
Disobedience to the court’s order strikes at the very root of the rule of law on which our judicial system rests.
The rule of law is the foundation of a democratic society.
Judiciary is the guardian of the rule of law.
It is the central pillar of the democratic State.
If the judiciary is to perform its duty and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs.
Otherwise, the very corner stone of our constitutional scheme will give way.
That is why it is imperative that court’s orders are to be followed and complied with.
(14) In Murray & Co.-vs.-Ashok Kr.
Newatia, (2000) 2 SCC367 the Apex Court observed that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of Law since image of such majesty in the minds of the people cannot be allowed to be distorted.
The respect and authority commanded by the Courts of Law are the greatest guarantee for an ordinary citizen and the entire democratic fabric of the society will crumble down if the respect for the judiciary is undermined.
(15) It is well-settled that the Supreme Court (by reason of Art.
129 of the Constitution) and the High Courts (by reason of Art.
215 of the Constitution) have inherent power to punish for contempt independent of apart from the Contempt of Court’s Act, 1971 or any other law relating to contempt.
In R.L.Kapur-vs.-State of Madras, (1972) 1 SCC651 the Apex Court observed that such inherent power or jurisdiction was not derived from statutory law relating to contempt.
Such power partakes the character of constitutional power and hence no law made by a legislature could take away such jurisdiction conferred on the Supreme Court and the High Courts.
In American Jurisprudence, 17 Am, Jur, 2d 63, it is stated that if a court derives its powers from the constitution, the Court’s power to punish for contempt cannot be taken away by the legislature.
The consensus seems to be that even in the absence of Arts.
129 and 215 of the Constitution of India, the Supreme Court and the High Courts would necessarily possess the power to punish for contempt.
In Gilbert Abnee-Vs.-Director of Public Prosecutions, (1999) 2 AC294 Lord Steyn, speaking for the Privy Council observed that in order to enable the judiciary to discharge its primary duty to maintain a fair and effective administration of justice, it must, as an integral part of its constitutional function, have the power and the duty to enforce its orders and to protect the administration of justice against contempts which are calculated to undermine it.
(16) The Rule of Law is the foundation of our Constitution and the right to obtain judicial redress is a feature of its basic structure.
It is through the Courts that the Rule of Law reveals its meaningful content.
Protection of the administration of justice is as imperative as its existence for the civilized functioning of any free and egalitarian social order.
The law of contempt secures public respect and confidence in the judicial process and provides the functioning for any act or conduct which is likely to destroy or impair such respect and confidence.
(17) In Arundhati Roy, In Re, AIR2002SC1375 the Hon’ble Apex Court opined that the Rule of Law is the basic scheme of the Constitution and that maintenance of dignity of courts is one of the cardinal principles of the Rule of Law.
The object of the law of contempt is to uphold the majesty of law and administration of justice, and not to vindicate the dignity and honour of an individual judge.
(18) In holding the respondents to be guilty of contempt of court and in particular civil contempt, it has to be shown that there has been wilful disobedience of the court’s order.
Since the notice of contempt and punishment for contempt has far reaching consequences, the power to punish for contempt should be exercised sparingly and only when a clear case of wilful disobedience to the court’s order has been made out.
The petitioner complaining of breach of court’s order must allege and establish deliberate or contumacious violation of the order of the court.
In Re Bramblevale (1969) 3 ALL ER1062 Lord Denning observed that contempt of court is an offence of a criminal character.
A man may be sent to prison for it.
It must be satisfactorily proved.
To use the time honoured phrase it must be proved beyond all reasonable doubt.
In case of doubt the benefit ought to go the person charged.
In V.G.Nigam-vs.-Kedar Nath Gupta, (1992) 4 SCC697 the Apex Court observed that it would be rather hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities.
(19) Before a person can be committed for contempt it must be shown that he has wilfully disobeyed the orders of the court.
‘Wilful’ means an act or omission which is done voluntarily and intentionally.
In Ashok Paper Kamgar Union-vs.-Dharam Godha, J.(2003) 7 SC581 the Apex Court opined that to establish that a person has wilfully disobeyed the orders of the Court, it must be shown that that person has committed an act of contempt with specific intent to do so i.e.with bad purpose either to disobey or disregard the law.
It signifies deliberate action done with full intent or with a bad motive or purpose.
Therefore in order to constitute contempt, the order of the court must be such which is capable of execution by the person charged in normal circumstances.
(20) Keeping the above principles of law in mind, applying my mind to the facts of the present case, I find that it is the specific case of the alleged contemnors that after the interim order dated 18 September, 2013 was passed by this Court, they have not collected any money from anybody in connection with the said film.
It is their further case that there was no utilization of any money collected by them from the market in connection with the said film after the order dated 18 September, 2013 was passed.
In other words, the alleged contemnors contend that they have not violated the fiRs.part of the judgment and order dated 24 December, 2014 in any manner.
They have relied on certain statements of collections and disbursements, the authenticity of which, however, has been disputed by the petitioner.
It is a case of oath versus oath.
The petitioner contends on oath that the respondents have collected and/or utilized moneys in violation of the judgment and order dated 24 December, 2014, while the respondents contend on oath that they have not done so.
Contempt proceedings are summary proceedings.
A contempt proceeding does not contemplate holding of a full-fledged trial to find out who is speaking the truth.
In view of the charge of contempt being of a criminal nature, it is for the petitioner to establish with cogent unassailable documentary evidence that the respondents have violated the court’s order.
No such clinching evidence is forthcoming from the petitioner in the present case.
The petitioner has merely disputed the correctness of the statements of collections and disbursement disclosed before this court under oath by the respondents.
The petitioner has not been able to bring on record any evidence to show that the contents of the statements of accounts relied upon by the respondents are false or concocted.
When there are two equally consistent possibilities open to the court, it would not be right to hold that the petitioner has proved the charge of contempt beyond reasonable doubt.
A person alleging wilful violation of a Court’s order must make out a clear-cut case admitting of no ambiguity.
This, burden and standard of proof, in my opinion, the petitioner has failed to discharge in the present case.
Accordingly I am of the view that no case of wilful disobedience of the fiRs.portion of the order dated 24 December 2014 pertaining to collection and utilization of money by the respondents, has been made out by the petitioner.
(21) In so far as the second part of the order dated 24 December, 2014 is concerned, pertaining to handing over all the cassettes to the Joint ReceiveRs.technically there appears to be a violation of the order inasmuch as the cassettes have not been handed over by the respondents to the Joint ReceiveRs.However, was such violation wilful?.
From the defence disclosed by the respondents it does not appear that such is the case.
The respondents have disclosed documents to show that much prior to passing of the order dated 24 December, 2014 the concerned cassettes were sold and transferred by the respondents to third parties.
The petitioner has alleged that the said documents are sham and fabricated and the respondents are still in custody of the cassettes, but the same are bald assertions without any supporting evidence.
Prima facie and on the face of it I do not find any reason to hold that the said documents evidencing transfer of the cassettes to third parties are manufactured documents.
This court is not in a position in the exercise of contempt jurisdiction to undertake a roving enquiry into the authenticity or otherwise of the said documents.
It was up to the petitioner to demonstrate by producing at least some evidence that the documents are sham and the transactions mentioned therein never took place.
The petitioner has not been able to disclose any material to assail the genuineness of the said documents or the contents thereof.
In view of the aforesaid I am impelled to proceed on the basis that the respondents did transfer the cassettes in question from their possession to third parties for valuable consideration prior to passing of the order dated 24 December, 2014.
Thus, as on that date or thereafter, the respondents were not in a position to comply with the second part of the said order which required them to deposit the cassettes with the Joint ReceiveRs.As on the dates when such transfer of cassettes took place, there was no order of Court restraining the respondents from doing so.
Whether or not such transfer was in breach of the contract between the petitioner and the respondents is a different question altogether which does not warrant consideration in this proceeding, but it cannot be held that such transfer was in violation of any order of Court.
In view of the aforesaid it follows that by not handing over the cassettes in question to the Joint ReceiveRs.the respondents did not wilfully violate the relevant portion of the judgment and order dated 24 December, 2014.
Prima facie I have to accept that the respondents were incapable of complying with the said order.
Law does not inflict punishment for contempt on a person for non-compliance with an order which it was not possible for that person to comply with as on the date of the order or thereafter.
If, it is not within the ability or power of a person to act in terms of an order of court, he ought not to be held guilty for contempt of court.
It does not amount a deliberate or calculated or intentional disobedience to an order of Court.
The respondents may have stolen a march over the petitioner by transferring the cassettes in question to third parties for valuable consideration, but the same was not done in violation of the order dated 24 December, 2014.
Attention of this Court was unfortunately not drawn to the said documents of transfer of the cassettes at the hearing which culminated in the order dated 24 December, 2014.
Had that been done, this Court would not have passed an order directing the respondents to do something which it was not within their ability to do.
Needless to say that the observations made in this judgment and order are for the purpose of deciding the present contempt application only and will not have any bearing at the final trial of the suit or any other interlocutory proceedings therein.
(22) In view of the aforesaid, I am unable to hold that the respondents are guilty of contempt.
The petitioner has not been able to establish to my satisfaction that the respondents have wilfully disobeyed the order dated 24 December, 2014 or have otherwise done anything to undermine the dignity or majesty of the court.
(23) This contempt application accordingly fails and is dismissed, without, however, any order as to costs.
(24) Urgent certified photocopy of this judgment and order, if applied, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)