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Nath Bank Ltd. (In Liquidation) Vs. Jogendra Kumar Majumder - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtKolkata High Court
Decided On
Case NumberMatter No. 550 of 1978 in Matter No. 206 of 1950 and CC Suit No. 2547 of 1951
Judge
Reported in[1980]50CompCas407(Cal)
AppellantNath Bank Ltd. (In Liquidation)
RespondentJogendra Kumar Majumder
Appellant AdvocateSeethaaraam, Adv.
Respondent AdvocateSanjib Dutt, Adv.
Cases ReferredHasan v. State of U.P.
Excerpt:
- .....to a registered mortgage executed by the legal owner in favour of myself. dated 21st july, 1978. gourdeb mukherjee 4, commercial building, calcutta-700001. ' 2. it appears that the contemner, gourdeb mukherjee, is alleging that a registered mortgage dated the 7th of august, 1953, created in his favour by the then owner of the premises known as kotrang properties, uttarpara, was purchased by the bank in public auction in execution of the decree against the judgement-debtor. it appears that the judgment debtor and his heirs and legal representatives and also other alleged lessees and benamidars tried to prevent the court liquidator representing the said decree-holder, nath bank ltd. (in liquidation), to take possession and to sell the said property. the records of the said proceedings.....
Judgment:

Salil K. Roy Chowdhury, J.

1. This is a rule for contempt issued by me suo motu for publishing a printed notice to prevent the sale directed to be held in court on the 21st of July, 1978, at 2 p.m. The said publicationis as follows :

', Purchasers-Beware

This is to inform the intending purchasers of ' the Kotrang properties ' which have been notified for public auction on the 21st of July, 1978, at the Hon'ble High Court at Calcutta that a suit being Suit No, 300 of 1978 has been filed by me in the High Court at Calcutta disputing the title of Nath Bank Limited (in liquidation) in the said ' Kotrang Properties ' and claiming inter alia that the said properties are subject to a registered mortgage executed by the legal owner in favour of myself. Dated 21st July, 1978.

Gourdeb Mukherjee 4, Commercial Building, Calcutta-700001. '

2. It appears that the contemner, Gourdeb Mukherjee, is alleging that a registered mortgage dated the 7th of August, 1953, created in his favour by the then owner of the premises known as Kotrang Properties, Uttarpara, was purchased by the bank in public auction in execution of the decree against the judgement-debtor. It appears that the judgment debtor and his heirs and legal representatives and also other alleged lessees and benamidars tried to prevent the court liquidator representing the said decree-holder, Nath Bank Ltd. (in liquidation), to take possession and to sell the said property. The records of the said proceedings will reveal the resistance and obstruction and various frivolous litigations and proceedings taken by the judgment-debtor, his heirs and legal representatives.Ultimately, the sale was fixed to be on the 21st of July, 1978. It also appears that previously the official liquidator made several attempts to sell the said property by public auction but he received letters from the said contemner, Gourdeb Mukherjee, asking that the sale should not be held free from encumbrances and the purchasers should be intimated about his alleged mortgage on the said properties. It appears from the past conduct of the contemner, Gourdeb Mukherjee, that he had the real intention to prevent the court liquidator from selling the said properties. He never took positive steps for enforcement of his alleged mortgage earlier than May, 1978, when he filed a suit in this court with the leave of the court and made an application, inter alia, for stay of the sale of the said premises alleged to be mortgaged to the said Gourdeb Mukherjee. Previously it appears that the said Gourdeb Mukherjee caused a public notification to be issued in the Statesman on the 21st of December, 1977, which is as follows :

3. Public Notification

' It is hereby notified for information of the intending auction purchasers that the house property at municipal holding No. 9 (near Hind Motor Station), P. S. Uttarpara, Dist. Hooghly, which will be sold by public auction on Thursday, the 22nd December, 1977, at 2. p. m. whatever there is basis, stands mortgaged to my client Shri Gourdeb Mukherjee of No. 4, Commercial Building, Calcutta, vide deed of mortgage dated 7th August, 1953, registered in the Office of the Registrar of Assurance, Calcutta in Book No. 2, Volume 85, Pages 42 to 46 being No. 2886 for the year 1953.

Dated the 20th December, 1977.

Ashok Kumar Dutta

Solicitor & Advocate 5. K.S. Roy

Road Calcutta-2 '

4. It further appears that he caused another printed pamphlet to be issued in his name giving notice to the intending purchasers in the sale which was scheduled to be held on the 22nd of December, 1977. The said publication is as follows :

' Purchasers - Beware

The house property at Debaibukur municipal holding No. 9 (near Hind Motor Station), P. S. Uttarpara, Dist. Hooghly, which is going to be put to sale by Public Auction on Thursday the 22nd December, 1977, at 2 p. m. at the Hon'ble High Court at Calcutta on ' as is where is and whatsoever there is basis stands mortgaged to Shri Gourdeb Mukherjee, vide deed of mortgage dated 7th August, 1953, registered in the office of the Registrar of Assurance, Calcutta in Book No. 2, Volume 85, Pages 42 to 46 being No. 2886 for the year 1953. So whoever purchases the property, he will do so subject to the Mortgage.

Dated the 19th December, 1977

Gourdeb Mukherejee

4, Commercial Building

Calcutta-7 '

5. Now in this background the court liquidator brought to the notice of this court and handed over a copy of the printed pamphlet in the name of the contemner, Gourdeb Mukherjee, which was distributed in the precincts of the court and pasted in the notice board and also on the walls of the court building just before the sale which was scheduled to be held on the 21st of July, 1978, at 2 p. m. Immediately, I issued a rule for contempt as the said publication of the pamphlet and pasting the same in the court premises and distributing to the public amounted to interference with the administration of the court and undermining the dignity of the court. The said pamphlet as would appear from itself was intended to prejudicially affect the sale. It is also very strange that the said contemner, Gourdeb Mukherjee, claimed to be a registered mortgagee of the said premises which was put up for sale and tried to prevent the sale on earlier occasions by writing letters to the court liquidator, printing pamphlets and also publishing notification in the newspaper as hereinbefore stated. The due date of the mortgage is alleged to be in 1958. In these circumstances it cannot leave any doubt in the minds of any person with some amount of common sense and experience that it can only be the contemner, Gourdeb Mukherjee, who has caused the said publication of the said pamphlet and pasting the same in the walls of the court premises and distributed the same to the intending purchasers who might have attended the court sale on the 21st of July 1978. The defence sought to be raised is not only very strange but also absurd and mala fide. Firstly, he has no knowledge of the said pamphlet and he has not caused it to be printed and published. In fact, it is a total denial of the act of contempt. Secondly, it was submitted by Mr. Sanjib Dutt appearing for the contemner that after he has filed the suit and made an application for stay of the sale and after being assured by the court that if he has any legal and valid mortgage on the said premises, his interest will be fully protected as the mortgage claim would shift to the sale proceeds and he will be able to realise it. Therefore, there was no point for him to prevent the sale by such publication. Next, Mr. Sanjib Dutt submitted that the printing and the publication of the said notice by the contemner has not been proved beyond doubt as there is no evidence as to the fact that he has printed it or he has published it or caused to be published and printed and he cited large number of decisions on the well known and well-settled principles of contempt to which I willjust now refer. Lastly, Mr. Dutt submitted that the alleged act of contempt has not caused any real prejudice to the plaintiff bank as the property has been ultimately sold and Mr. Dutt submitted that if the court finds that the contemner is guilty of contempt he would tender apology as he has no intention to interfere with the administration of the court or lower the dignity in any way whatsoever. He has the greatest regard for the court. But I am unable to accept the said contention as a denial, a justification of real prejudice and, lastly, an apology in a contempt proceeding have been set up. But in my view denial and justification is directly inconsistent with apology and, therefore, itself in my view amounts to admission of the contempt in the facts and circumstances of this case. It is a special jurisdiction of summary nature and should be exercised sparingly, cautiously and not arbitrarily and capriciously. The fact has to be carefully analysed but at the same time it must be presumed that the court has common sense and experience and not a mere computer and decide matte'rs on technicalities only. In this case, I have no hesitation whatsoever to hold that the contemner is guilty of contempt as the printed pamphlet cannot be published by any one else but the said Gourdeb Mukherjee as the previous publication and notification in the newspaper seems to be in tenor more or less of same substance. It also appears that he took the leave of the court to file a suit but kept silent for a few months and then only filed a suit and applied for stay of the sale just after the same was published by the court liquidator. Mr, Dutt cited various decisions being Jawand Singh Hukam Singh v. Om Parkash Aggarwal, , Sadhu Venkayya v. Colla Meenakshamma, : AIR1952Mad180 , Homi Rustomji Pardivala v. Sub-Inspector, Baig, AIR 1944 Lahore 196, Ananta Lal Singh v. Alfred Henry Watson, AIR 1931 Cal. 257. Under Article 143 of the Constitution of India, : AIR1965SC745 , Rizwan-ul-Hasan v. State of U.P., : 1953CriLJ911 , in support of his said propositions that an act of contempt must be proved beyond reasonable doubt and the standard of proof is that as of a criminal proceeding, there was no real prejudice caused to the Bank. The court should not be touchy and should not punish a person for contempt which is of technical nature or of no serious consequences, and, lastly, the contemner has tendered apology.

6. Considering the matter very carefully and giving my anxious thought over the matter I have no hesitation in holding that the said Gourdeb Mukherjee the contemner is guilty of contempt. I may also observe here that he is present in court and his very appearance and attitude left no doubt in my mind that he is a shrewd person who was trying to interfere with the court's proceeding by preventing the sale as long as possible, so far. But considering his old age and also the apology tendered at the last stage I am inflicting the minimum punishment by ordering him to bedetained in court till the rising of the court. He is directed to pay costs of this application assessed at 30 G. Ms. within a week from date.


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