w w w . L a w y e r S e r v i c e s . i n



M/s Sanjay Cold Storage v/s M/s Gateway Coated Papers Pvt. Ltd


Company & Directors' Information:- R J COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1992PTC049659

Company & Directors' Information:- M F PAPERS LIMITED [Active] CIN = U55101PB1992PLC012138

Company & Directors' Information:- S. D. COLD STORAGE PRIVATE LIMITED [Active] CIN = U15132UP1995PTC018791

Company & Directors' Information:- D G COLD STORAGE PRIVATE LIMITED [Active] CIN = U45209WB2001PTC092809

Company & Directors' Information:- N P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15549WB1997PTC085229

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC041010

Company & Directors' Information:- L P PAPERS LIMITED [Strike Off] CIN = U21017UP1980PLC005110

Company & Directors' Information:- G C G COLD STORAGE PRIVATE LIMITED [Active] CIN = U01400MH2012PTC235712

Company & Directors' Information:- L P COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1997PTC021864

Company & Directors' Information:- P D COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2010PTC039698

Company & Directors' Information:- N R S COLD STORAGE PVT LTD [Active] CIN = U63022WB1978PTC031524

Company & Directors' Information:- S M COLD STORAGE PVT LTD [Active] CIN = U63022WB1986PTC040843

Company & Directors' Information:- A TO Z COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2010PTC040956

Company & Directors' Information:- A S PAPERS PRIVATE LIMITED [Active] CIN = U21012DL2004PTC127063

Company & Directors' Information:- GATEWAY COATED PAPERS PRIVATE LIMITED [Strike Off] CIN = U21012DL2001PTC110257

Company & Directors' Information:- A-1 COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900TG2015PTC100777

Company & Directors' Information:- D N COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1989PTC010708

Company & Directors' Information:- P S COLD STORAGE PRIVATE LIMITED [Active] CIN = U15139UP2001PTC026373

Company & Directors' Information:- N L COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022ML2001PTC006536

Company & Directors' Information:- K H I COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022DL1999PTC100373

Company & Directors' Information:- K J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1996PTC018274

Company & Directors' Information:- V K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022RJ1998PTC014964

Company & Directors' Information:- R M COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024532

Company & Directors' Information:- S L P COLD STORAGE PRIVATE LIMITED [Converted to LLP] CIN = U00063KA1997PTC022544

Company & Directors' Information:- M D COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP2001PTC025987

Company & Directors' Information:- S N COLD STORAGE PVT LTD [Active] CIN = U15132WB1977PTC031040

Company & Directors' Information:- A K COLD STORAGE PRIVATE LIMITED [Active] CIN = U15133UP1999PTC024374

Company & Directors' Information:- G. T. COLD STORAGE PRIVATE LIMITED [Active] CIN = U70101UP1999PTC024239

Company & Directors' Information:- GATEWAY PAPERS PRIVATE LIMITED [Active] CIN = U74899DL1980PTC010361

Company & Directors' Information:- G D COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1997PTC084601

Company & Directors' Information:- J S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020250

Company & Directors' Information:- B C COLD STORAGE PRIVATE LIMITED [Active] CIN = U45302PB1997PTC019355

Company & Directors' Information:- G S P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069618

Company & Directors' Information:- R R COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022TZ1995PTC006478

Company & Directors' Information:- R. A. PAPERS PRIVATE LIMITED [Active] CIN = U21091UP1995PTC018683

Company & Directors' Information:- GATEWAY (INDIA) PRIVATE LIMITED [Strike Off] CIN = U99999MH2001PTC130252

Company & Directors' Information:- M. D. PAPERS PRIVATE LIMITED [Active] CIN = U21014DL2009PTC186914

Company & Directors' Information:- D C PAPERS PRIVATE LIMITED [Active] CIN = U25203UP2007PTC033113

Company & Directors' Information:- P V K PAPERS LTD [Strike Off] CIN = U21012WB1978PLC031683

Company & Directors' Information:- H J COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022WB1999PTC089452

Company & Directors' Information:- B K COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB1997PTC020070

Company & Directors' Information:- J T S COLD STORAGE PRIVATE LIMITED [Active] CIN = U74900UP2011PTC044733

Company & Directors' Information:- COLD STORAGE CORPORATION OF INDIA LIMITED [Active] CIN = U25193UP1946PLC001472

Company & Directors' Information:- V P M PAPERS PVT LTD [Strike Off] CIN = U21012PB1990PTC010215

Company & Directors' Information:- M K R S S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63090WB2020PTC241530

Company & Directors' Information:- M W PAPERS PRIVATE LIMITED [Active] CIN = U21000DL2010PTC208235

Company & Directors' Information:- R G P COLD STORAGE PRIVATE LIMITED [Active] CIN = U74999KA2006PTC039844

Company & Directors' Information:- A P COATED PAPERS PVT LTD [Active] CIN = U21012TG1990PTC010971

Company & Directors' Information:- V. D. PAPERS PRIVATE LIMITED [Active] CIN = U21015UP1994PTC017090

Company & Directors' Information:- J P G A COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022PB2005PTC028831

Company & Directors' Information:- COATED PAPERS INDIA LIMITED [Strike Off] CIN = U74900DL1995PLC067565

Company & Directors' Information:- R B COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022BR1979PTC001418

Company & Directors' Information:- N J COLD STORAGE PRIVATE LIMITED [Active] CIN = U63020DL2010PTC207001

Company & Directors' Information:- S B PAPERS PVT LTD [Strike Off] CIN = U21014WB1991PTC050636

Company & Directors' Information:- G M COLD STORAGE PVT LTD [Strike Off] CIN = U63022OR1985PTC001574

Company & Directors' Information:- S V S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U74999AP1999PTC033134

Company & Directors' Information:- R V COLD STORAGE PVT LTD [Strike Off] CIN = U15133UP1988PTC010122

Company & Directors' Information:- K B PAPERS PRIVATE LIMITED [Strike Off] CIN = U21099OR1995PTC003867

Company & Directors' Information:- D. P. PAPERS PRIVATE LIMITED [Active] CIN = U21093UP1995PTC017998

Company & Directors' Information:- V L S COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63010TG2011PTC072072

Company & Directors' Information:- J V PAPERS PRIVATE LIMITED [Active] CIN = U21012DL1996PTC083543

Company & Directors' Information:- M S PAPERS PRIVATE LIMITED [Strike Off] CIN = U21020DL2008PTC178962

Company & Directors' Information:- M Y COLD STORAGE PRIVATE LIMITED [Active] CIN = U15122UP2012PTC053516

Company & Directors' Information:- R M PAPERS PRIVATE LIMITED [Strike Off] CIN = U21013KA1989PTC010623

Company & Directors' Information:- K T COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63022NL2001PTC006616

Company & Directors' Information:- H. V. PAPERS PRIVATE LIMITED [Strike Off] CIN = U51101MH2012PTC234213

Company & Directors' Information:- K K C PAPERS PRIVATE LIMITED [Active] CIN = U21098MH2010PTC207873

Company & Directors' Information:- M M COLD STORAGE PRIVATE LIMITED [Strike Off] CIN = U63090TG2013PTC090068

Company & Directors' Information:- B M PAPERS PRIVATE LIMITED [Active] CIN = U74999DL2015PTC283769

Company & Directors' Information:- S. L. PAPERS PRIVATE LIMITED [Strike Off] CIN = U21000GJ2012PTC069875

Company & Directors' Information:- H. R. COLD STORAGE PRIVATE LIMITED [Active] CIN = U63030GJ2016PTC092718

Company & Directors' Information:- COLD STORAGE (INDIA) LTD. [Dissolved] CIN = U99999MH1922PTC000998

Company & Directors' Information:- INDIA COLD STORAGE CO. LTD. [Not available for efiling] CIN = U99999MH1948PLC006673

    CCP (Co.) No. 8 of 2008 IN COMPANY PETITION NO. 215 OF 2005

    Decided On, 18 January 2011

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE SUDERSHAN KUMAR MISRA

    For the Petitioner: Rajesh Gogna, Advocate. For the Respondent: Deepak Kumar, Advocate.



Judgment Text

SUDERSHAN KUMAR MISRA, J.


1. This petition under Sections 10 and 12 of the Contempt of Courts Act, 1971 has been filed by M/s Sanjay Cold Storage on the grounds that Mr. K.K. Goel, Director of the company M/s Gateway Coated Papers Pvt. Ltd. intentionally and deliberately filed a false reply and affidavit in the winding up petition bearing CP. No. 215/2005.


2. The developments which led to the filing of this petition are as follows: The petitioner moved CP No. 215/2005, seeking the winding up of M/s Gateway Coated Papers Pvt. Ltd. on the ground of non-payment of Rs.30 lakhs, allegedly loaned by the petitioner to the company some time in 2002. According to the petitioner, one Mr. Narendra Kumar Goyal, stated to be a Director of the company, signed post-dated cheques in repayment of that loan, which were dishonoured on presentment.


3. The company?s reply to the winding up petition was supported by an affidavit of the respondent Mr. K.K. Goel, as its Director. There, certain statements regarding the abovementioned Mr. Narendra Kumar Goyal?s status in the company were made, as also regarding the company?s liability to pay any amount to the petitioner. In essence, the company?s defence was that the alleged loan was taken by Mr. Narendra Kumar Goyal from the petitioner on forged and manufactured documents. It was also averred that on 19th June, 2004, by a Memorandum of Understanding, the aforesaid Mr. Narendra Kumar Goyal, who was at that time a Director and majority shareholder, sold his entire shareholding in the company to one Mr. Naresh Kumar Gupta, and, since the aforesaid Memorandum did not specifically list this liability due to the petitioner as payable by Mr. Naresh Kumar Gupta in the Annexure where details of other liabilities payable by him subsequent to his coming into the company?s management were given, therefore, the outstanding amount remained the personal liability of Mr. Narendra Kumar Goyal alone. According to the company, pursuant to the aforesaid Memorandum of Understanding, Mr. Narendra Kumar Goyal had ceased to be a Director of the company; and since the post-dated cheques issued to the petitioner were signed by him, therefore, no legally enforceable debt is due or payable by the company to the petitioner because Mr. Narendra Kumar Goyal had no authority to sign the aforesaid cheques on behalf of the company.


4. In support of these contentions, it was stated in paragraph 7 of the preliminary objections in the reply, that ??..Shri Narendra Kumar Goyal is no more the director of the Company and he is not authorized to sign the cheque on behalf of the Company and therefore, on this ground the winding up petition deserves to be dismissed.?


5. In paragraph 7 of the reply on merits, it was stated that, ?It is denied that the Respondent Company has been confirming the loan amount taken on different occasions by different confirmation letters. As stated heretobefore, Mr. Narendra Goyal took alleged loan and executed documents in favour of Petitioner, the proprietor whereof is related to Mr. Narendra Goyal. It is submitted that all the letters/confirmation have been executed in collusion with Shri Narendra Kumar Goyal, Ex-Director of the Respondent Company and the said documents do not bind the Respondent Company.?


6. In paragraph 8 of the reply on merits, it was further stated that, ?As stated heretobefore, the alleged loan was taken personally by Mr. Narendra Kumar Goyal and the manufactured documents, which were never disclosed in MoU whereby present management purchased the entire shareholding. All documents were being manufactured by said Mr. Narendra Kumar Goyal in collusion with Petitioner, who are related to each other. All the earlier payments were made by Shri Narendra Kumar Goyal, Ex-Director of the Respondent Company and the last payment for the year 2004-2005 has been made on 14.7.04, 5 days before the signing of the memorandum of understanding, which was never disclosed to the present management at the time of take over.?


7. In paragraph 9 of the reply on merits, it was, ??denied that as on 20.11.2003 the Respondent Company was indebted in the amount of Rs.34 lacs, to the Petitioner.? In paragraph 15 of the reply on merits, it was also ??denied that the Respondent Company is liable to pay any amount much less sum of Rs.34,62,165 (Rs.30,00,000/- as principal amount along with Rs.4,62,165 as an interest accrued thereon upto 30.04.05) to the Petitioner as falsely claimed.?


8. The aforesaid reply has been admittedly signed and verified by Mr. K.K. Goel, as required under Order 6, Rule 15 of the Civil Procedure Code, 1908. It states that, ?para 1-2 of the preliminary submissions and para 1-19 of reply on merits are true to my knowledge based on the records maintained by the respondent during the normal course of business and para 19-26 of reply on merits and para 1-9 of preliminary objections are true and correct to my belief and legal information received??. An affidavit of Mr. K.K. Goel has further verified the contents of the reply, and specifically stated therein that he had read and understood the contents of the reply and that the facts stated therein were true and correct to his knowledge, which had been gathered from the records of the respondent company during the normal course of business. Further, in the verification of the aforesaid affidavit, Mr. K.K. Goel stated that, ?nothing material has been concealed therefrom?.


9. However, after the respondent filed the reply to the winding up petition on 23rd January, 2006 on behalf of the company, the petitioner applied for and obtained copies of the annual returns and balance sheets filed by the respondent with the Registrar of Companies. These documents are public documents with the Registrar of Companies, whose filing is statutorily mandated by S. 210 and 159 of the Companies Act, 1956, and may be inspected by any member of the public.


10. In the audited balance sheet of the respondent, as at 31st August, 2007, that had been filed with the Registrar of Companies in Form 23AC on 26th June, 2008, the name of the petitioner appears in the list of, ?schedule unsecured loan as on 31.03.2007?, for an amount of Rs.30,00,000/-. A copy of this Form 23AC that the petitioner received from the Registrar of Companies has been placed on record. The aforesaid Form has been digitally signed by Mr. Samir Garg, who is stated to be a Director of the respondent company. The audited balance sheet for the year ending 31.03.2007 has the signatures of Mr. K.K. Goel, Director of the company, on each page thereof, including the page in respect of the ?schedule unsecured loan, as on 31.03.2007?. It was also admitted at the Bar that, even in the current balance sheet, this amount is being shown as outstanding and payable to the petitioner.


11. Further, in the annual return filed by the respondent with the Registrar of Companies, for the year ending 31.03.2007, in Form 20B on 26th June, 2008, Mr. Narendra Kumar Goyal is shown as one of the Directors of the company in the List of Directors, as on 29th September, 2007. The same List of Directors also gives his date of appointment as 30th March, 2001. The aforesaid Form has been signed by Mr. Samir Garg, and the List of Directors, as on 29th September, 2007, has been signed by Mr. K.K. Goel. A copy of this Form 20B has been placed on record as well.


12. The aforesaid Mr. K.K. Goel signed the reply to the winding up petition; the reply to this contempt petition; as well as the returns, and balance sheets before the Registrar of Companies. Yet, in the pleadings, he categorically takes the stand that Mr. Narendra Kumar Goyal is merely an ex-Director of the company, and that no amount is owed to the petitioner. No rules, regulations or precedent have been cited by the respondent which might permit a person to state a fact to the Registrar which is knowingly incorrect, nor has any accounting treatment been explained by the respondent to support his stand that the amount due to the petitioner was still to be shown as due from the company even if it had been settled as payable by Mr. Narendra Kumar Goyal personally, after the Memorandum of Understanding was signed in 2004.


13. This petition for initiation of contempt proceedings was filed by the petitioner in this Court, where the winding up petition is also pending. Reliance was placed by counsel for the petitioner on Sadhna Sharma v Municipal Corporation of Delhi, 157 (2009) DLT 462 (DB); and Murray & Co. v Ashok Kumar Newatia & Anr, (2000) 2 SCC 367, in support of the petitioner?s contention that by making such contradictory and palpably false statements before this Court and a statutory authority, the respondent has committed contempt of this Court. The issue essentially is whether, in stating inconsistent and contrary facts before this Court on one hand, and before the Registrar of Companies on the other, Mr. K.K. Goel has deliberately attempted to gain some advantage in these proceedings and to impede the administration of justice, thus committing contempt of this Court. It may be noted that counsel for the respondent admitted at the Bar that the statements in the documents filed before the Registrar are, in fact, correct.


14. The power to punish for contempt is, inter alia, in the larger public interest of preventing any undue interference with the administration of justice and to uphold the dignity and majesty of the law.


15. Section 2(b) of the Contempt of Courts Act, 1971 defines civil contempt 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..


16. Section 2(c) of the Act defines criminal contempt as ?the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-


(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or


(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding , or


(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.


17. It is well established that making any false statement in pleadings supported by an affidavit amounts to contempt of court. In Dhananjay Sharma v State of Haryana & Ors., (1995) 3 SCC 757, the Supreme Court has held as under;


?The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence, commits criminal contempt of the court and renders himself liable to be dealt with in accordance with the Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake.?


[See also, Rita Markandey v Surjit Singh Arora, (1996) 6 SCC 14]


18. In reply to the contempt petition, the respondent?s stand was that the present petition is an abuse of the process of law as there was, ?no willful and deliberate violation of the orders of this Court?, and that Mr. K.K. Goel?s actions did not amount to, ?civil contempt?, as defined in S.2(b) of the Contempt of Courts Act, 1971. At the same time, an unconditional apology for the actions of the respondents was also tendered, in case this Court felt that there was any omission or commission on their part which amounted to any disobedience of the orders of this Court. On merits it was categorically denied that Mr. K.K. Goel had made any false statement in the reply to CP No. 215/2005. It was also denied that there was any contradiction in the reply and affidavit filed by Mr. K.K. Goel in this Court and in the documents filed by him at a later date before the Registrar of Companies. At the same time, counsel for the respondent stated at the Bar that the statements in the documents filed before the Registrar of Companies, were correct. Further, it was also alleged that Mr. Narendra Kumar Goyal was shown as a Director in the records of the company after 19th July, 2004, ?in name only?, with a view to meeting certain statutory liabilities which existed on 19th July, 2004. In this context, a letter of resignation dated 19th July, 2004, allegedly written by Mr. Narendra Kumar Goyal to the Board of Directors of the respondent company pursuant to the aforesaid Memorandum of Understanding, was relied on. However, the relevant Form 32 informing the Registrar of Companies of Mr. Narendra Kumar Goyal?s resignation, admittedly, has not been filed with the Registrar of Companies till date. According to counsel for the respondent, the filing of the relevant Form 32 with the Registrar of Companies was a mere procedural formality. I do not agree with this submission, for the reason that, while there is no procedure prescribed by the Companies Act, 1956 as such for the resignation of Directors, S.303(2) of the Companies Act, 1956 requires a company to intimate the Registrar in the prescribed form of any change among its directors or managing director while specifying the date of the change. No rule, regulation or precedent has also been cited by the respondent to show that the filing of Form 32 with the Registrar of Companies is merely a procedural requirement, and that a letter of resignation from the Director concerned is sufficient.


19. It is evident that inconsistent and contrary facts were placed before this Court during the course of the winding up proceedings, and before the Registrar of Companies. In view of counsel?s admitted position that the statements made before the Registrar are correct, the conduct of the respondent, prima facie, appears to be an effort to prejudice the due course of judicial proceedings and falls within the definition of criminal contempt.


20. However, once a conclusion has been reached that the contempt alleged to have been committed by the respondent is, prima facie, criminal contempt, and not civil contempt, the effect of S.15, 17 and 18 of the Contempt of Courts Act, 1971 cannot be ignored. S.14 and S.15 of the Act deal with cognizance of contempt in two situations. S.14 deals with contempt committed in the hearing or in the presence of the Supreme Court or a High Court, i.e. contempt in facie curiae, whether civil or criminal. On the other hand, S.15 deals with cognizance of criminal contempt of the High Court or courts subordinate thereto, other than criminal contempt in facie curiae, in as many as five different ways, since the entire objective of prescribing the procedure to take cognizance of criminal contempt is to safeguard the Court?s time from being wasted by a frivolous contempt petition. S.17 further prescribes the procedure to be followed after cognizance of criminal contempt is taken under S.15. However, S.18 of the Act provides that every case of criminal contempt under S.15, other than contempt referred to in S.14, must be heard and determined by a Bench of not less than two Judges. Therefore, the conclusion that naturally follows is that where a criminal contempt appears to have occurred, other than in the hearing or presence of the Court itself, the manner of cognizance of the same is prescribed in S.15, which is, in turn, to be read with S.18.


21. This aspect of the matter was not pleaded by either party before this Court. The respondent also did not raise any objection to the maintainability of the petition on that ground. What is to be seen is whether this Court, i.e. the Company Court, can proceed with

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the petition in its present form. To my mind, this Court does not have the jurisdiction to deal with criminal contempt that has not been committed in the hearing or in the presence of this Court. The petitioner filed this contempt petition in this Court since it is the Court in which the winding up petition is also pending, and prayed that this Court initiate appropriate contempt proceedings. Yet, the petitioner made no prayer to initiate suo motu proceedings against the respondent, nor is there anything on record to indicate that the contents of the petition are to be treated as information placed before the Court for initiation of suo motu proceedings by this Court. The matter has also been fully argued in the Company Court as a petition filed by a private party, in respect of which the written consent of the Advocate-General was not obtained. This Court is not unaware that the power to proceed suo motu on the basis of information or facts stated in a contempt petition otherwise incompetent under S.15 is to be exercised sparingly. There is also nothing in the Delhi High Court Rules which would permit this Court to hear and decide this type of criminal contempt, in view of a specific statutory provision that provides for hearing and final determination of the same by a Bench of not less than two Judges. In order to further elucidate the position, the matter was listed for directions on 26.11.2010. Only the petitioner?s counsel appeared on that day and submitted that he too agreed with the view that the matter needs to be heard by a Division Bench in terms of Section 18 of the Contempt of Courts Act. 22. It is, therefore, directed that the present petition be placed before Hon?ble the Chief Justice for reference to an appropriate Bench, on 28th January, 2011 in view of Section 18 of the Contempt of Courts Act, 1971.
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