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



S.V. Matha Prasad v/s Gururajan Shyank Territorial Manager-Retail Representative of M/s. Bharat Petroleum Corporation Limited, A Government of India Undertaking Ranganathan Garden, Anna Nagar, Chennai


Company & Directors' Information:- BHARAT PETROLEUM CORPORATION LIMITED [Active] CIN = L23220MH1952GOI008931

Company & Directors' Information:- CHENNAI PETROLEUM CORPORATION LIMITED [Active] CIN = L40101TN1965GOI005389

Company & Directors' Information:- V - RETAIL PRIVATE LIMITED [Active] CIN = U52300TG2009PTC063445

Company & Directors' Information:- M S RETAIL PRIVATE LIMITED [Active] CIN = U52341KA2009PTC049097

Company & Directors' Information:- A R C INDIA PETROLEUM PRIVATE LIMITED [Active] CIN = U11202TG2009PTC063249

Company & Directors' Information:- A TO Z RETAIL LIMITED [Active] CIN = U52190MH2005PLC155766

Company & Directors' Information:- S D RETAIL PRIVATE LIMITED [Active] CIN = U52520GJ2004PTC056076

Company & Directors' Information:- P C INDIA LIMITED [Strike Off] CIN = U33111TN1986PLC013401

Company & Directors' Information:- A & M RETAIL PRIVATE LIMITED [Active] CIN = U52100TG2012PTC080504

Company & Directors' Information:- S. H. RETAIL PRIVATE LIMITED [Active] CIN = U52100DL2010PTC199889

Company & Directors' Information:- B P INDIA LIMITED [Amalgamated] CIN = U51209MH1978PLC020456

Company & Directors' Information:- S M INDIA LTD [Strike Off] CIN = U26942ML1998PLC005541

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- V G RETAIL PRIVATE LIMITED [Strike Off] CIN = U52300TG2009PTC065574

Company & Directors' Information:- R D RETAIL INDIA PRIVATE LIMITED [Active] CIN = U52100DL2012PTC235004

Company & Directors' Information:- M S N RETAIL PRIVATE LIMITED [Active] CIN = U52190KA2020PTC137203

Company & Directors' Information:- D & T RETAIL PRIVATE LIMITED [Strike Off] CIN = U74900HR2015PTC055569

Company & Directors' Information:- S & B RETAIL PRIVATE LIMITED [Under Process of Striking Off] CIN = U74120MH2015PTC266050

Company & Directors' Information:- N. S. RETAIL INDIA PRIVATE LIMITED [Active] CIN = U52609DL2017PTC310030

Company & Directors' Information:- A A RETAIL (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74900GJ1991PTC016073

Company & Directors' Information:- S R PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U23200MH1999PTC122909

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- G K RETAIL PRIVATE LIMITED [Active] CIN = U15202DL2007PTC171738

Company & Directors' Information:- C F O RETAIL (INDIA) PRIVATE LIMITED [Active] CIN = U51909MH2003PTC140364

Company & Directors' Information:- C-3 RETAIL PRIVATE LIMITED [Strike Off] CIN = U52190WB2010PTC151458

Company & Directors' Information:- S M RETAIL PRIVATE LIMITED [Strike Off] CIN = U51494OR2008PTC010261

Company & Directors' Information:- N. P. PETROLEUM LIMITED [Strike Off] CIN = U23201UP1995PLC018153

Company & Directors' Information:- R. B. RETAIL LIMITED [Strike Off] CIN = U51109WB2008PLC123637

Company & Directors' Information:- R H PETROLEUM PRIVATE LIMITED [Active] CIN = U23209MH1996PTC101701

Company & Directors' Information:- M M RETAIL PRIVATE LIMITED [Active] CIN = U52599DL2007PTC157838

Company & Directors' Information:- R J GARDEN PRIVATE LIMITED [Active] CIN = U70109WB2011PTC168040

Company & Directors' Information:- W 1 RETAIL PRIVATE LIMITED [Strike Off] CIN = U52322DL2010PTC209103

Company & Directors' Information:- D K RETAIL PRIVATE LIMITED [Strike Off] CIN = U52399BR2011PTC016439

Company & Directors' Information:- K S M PETROLEUM PRIVATE LIMITED [Active] CIN = U01120TZ1978PTC000800

Company & Directors' Information:- S. S. T. B. RETAIL PRIVATE LIMITED [Active] CIN = U52600MH2018PTC305554

Company & Directors' Information:- J S RETAIL PRIVATE LIMITED [Strike Off] CIN = U52399PN2008PTC131786

Company & Directors' Information:- G & A RETAIL PRIVATE LIMITED [Strike Off] CIN = U74994MH2011PTC219515

Company & Directors' Information:- C. R. GARDEN PRIVATE LIMITED [Active] CIN = U74140MH2013PTC251517

Company & Directors' Information:- A. M. PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U51524MH2014PTC255581

Company & Directors' Information:- NAGAR CORPORATION PRIVATE LIMITED [Active] CIN = U74900PN2013PTC148356

Company & Directors' Information:- R K D RETAIL PRIVATE LIMITED [Strike Off] CIN = U74999MH2014PTC253224

Company & Directors' Information:- S V S PETROLEUM PRIVATE LIMITED [Active] CIN = U51909DL2002PTC116940

Company & Directors' Information:- F T RETAIL PRIVATE LIMITED [Active] CIN = U52100DL2015PTC279351

Company & Directors' Information:- B K S RETAIL PRIVATE LIMITED [Strike Off] CIN = U52300DL2010PTC211307

Company & Directors' Information:- I. V. RETAIL PRIVATE LIMITED [Strike Off] CIN = U52390HR2009PTC039614

Company & Directors' Information:- A K M RETAIL PRIVATE LIMITED [Strike Off] CIN = U52599DL2006PTC150947

Company & Directors' Information:- GARDEN CO LTD [Strike Off] CIN = U65921WB1962PLC030166

Company & Directors' Information:- BHARAT CORPORATION PVT LTD [Strike Off] CIN = U74999CH1946PTC001103

Company & Directors' Information:- INDIA PETROLEUM COMPANY LIMITED [Dissolved] CIN = U99999MH1936PTC002453

    Cont.P.No. 1018 of 2019 in S.A.No. 1498 of 2005

    Decided On, 25 September 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE P. RAJAMANICKAM

    For the Petitioner: M/s. S. Hemanand, Advocate. For the Respondent: O.R. Santhanakrishnan, Advocate.



Judgment Text

(Prayer: Contempt Petition is filed under Section 11 of the Contempt of Courts Act to punish the respondent for disobeying the order passed by this Court in S.A.No.1498 of 2005 dated 06.12.2006 and upon the undertaking given by the respondent.)

This contempt petition has been filed by the respondent in S.A.No.1498 of 2005 under Section 11 of the Contempt of Courts Act to punish the respondent herein / appellant for disobeying the order passed by this court in S.A.No.1498 of 2005 dated 06.12.2006 upon the undertaking given by the respondent herein.

2. According to the petitioner, he filed a suit in O.S.No.3245 of 1999 on the file of the II Assistant Judge, City Civil Court, Chennai, for the relief of permanent injunction to restrain the respondent herein from putting up any construction over the suit property and the said suit was decreed on 31.07.2003. As against the same, the respondent herein had filed an appeal in A.S.No.43 of 2004 on the file of the VII Additional Judge, City Civil Court, Chennai and the said appeal was dismissed on 23.03.2005 and thereby confirmed the judgment and decree passed by the trial court. Feeling aggrieved, the respondent herein had filed a second appeal in S.A.No.1498 of 2005 before this court and during pendency of the said second appeal, the respondent’s representative had filed an affidavit undertaking that the appellant Corporation has no intention to put up construction over the suit property. Based on the said undertaking, this court had dismissed the second appeal on 06.12.2006.

3. But, contrary to the said undertaking, the respondent herein has put up constructions in the suit property and the said fact was known to the petitioner on 18.12.2018. Hence, he issued a lawyer’s notice to the respondent calling upon him to stop such violence. But, the respondent did not stop the construction and hence, the petitioner has filed the present petition to punish the respondent under the Contempt of Courts Act.

4. The respondent has filed a counter affidavit stating that the petition is misconceived. He further stated that the petitioner has to work out his remedies, in the case of alleged breach of undertaking by the respondent Corporation, in a manner known to law. He further stated that due to damage to the buildings, leakages at places, it was becoming difficult for the Corporation to maintain the dispensing units and automation systems and hence, it has put up a temporary room with asbestos roofing for housing the electronic equipments like CCTV, Automation, PCs., etc., and also an electrical room. Ladies’ and Gents’ toilets were also provided in line with the ‘Swatchh Bharat Abhiyan’ initiated by the Government of India in public interest. He further stated that the said temporary constructions can be dismantled at any time. He further stated that the respondent has not violated the order of this court and in the event of this court coming to the conclusion that the respondent has violated the order of this court dated 06.12.2006 in S.A.No.1498 of 2005, he tendered unconditional apology and recording the same, this contempt petition may be closed.

5. Learned counsel for the petitioner relying upon the decision of the Hon’ble Supreme Court in Rama Narang Vs. Ramesh Narang & Another (Contempt Petition (Civil) 148 of 2003) dated 15.03.2007 has contended that the violation of the undertaking given before this court would amount to contempt and therefore, he prayed to punish the respondent under the Contempt of Courts Act.

6. On the contrary, the learned counsel for the respondent relying upon the decision of the Hon’ble Supreme Court in Kanwar Singh Saini Vs. High Court of Delhi (2012) 4 SCC 307 has contended that the remedy available to the petitioner is that he has to file an execution petition by invoking the provisions under Order 21 Rule 32 CPC and instead of that, he cannot file a petition under the Contempt of Courts Act.

7. In Kanwar Singh Saini Vs. High Court of Delhi (cited supra), the Hon’ble Supreme Court in paragraph Nos.16, 18, 21 and 35 has observed as follows:

‘‘16. Be that as it may, the so-called statement/undertaking given by the appellant/defendant culminated into the decree of the Civil Court dated 12.5.2003. Thus, the question does arise as to whether the application under Order XXXIX Rule 2A CPC or under the Act 1971 could be entertained by the Civil Court and whether the matter could be referred to the High Court at all.

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18. In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order XXXIX Rule 2A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the Act 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings. There is a complete fallacy in the argument that the provisions of Order XXXIX Rule 2A CPC would also include the case of violation or breach of permanent injunction granted at the time of passing of the decree.

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21. The provision of Order XXI Rule 32 CPC applies to prohibitory as well as mandatory injunctions. In other words, it applies to cases where the party is directed to do some act and also to the cases where he is abstained from doing an act. Still to put it differently, a person disobeys an order of injunction not only when he fails to perform an act which he is directed to do but also when he does an act which he is prohibited from doing. Execution of an injunction decree is to be made in pursuance of the Order XXI Rule 32 CPC as the CPC provides a particular manner and mode of execution and therefore, no other mode is permissible. (See: Hungerford Investment Trust Ltd. (In voluntary Liquidation) v. Haridas Mundhra & Ors.,

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35. The courts below have proceeded with criminal contempt proceedings not for disobeying any judgment or order but for taking inconsistent pleas in the reply filed by the appellant to the application under Order XXXIX Rule 2A CPC, accepting it to be a false affidavit. Purposes of initiation of contempt proceedings are two-fold: to ensure the compliance of the order passed by the court; and to punish the contemnor as he has the audacity to challenge the majesty of law. In the instant case, admittedly, the grievance of the complaint had been disobedience of decree/order of the civil court dated 12.5.2003. The High Court convicted the appellant and sent him to jail but did not grant any relief so far as the enforcement of the order dated 12.5.2003 is concerned. We failed to understand as under what circumstances, the High Court did not even consider it appropriate to enforce the judgment/order/decree if it had been disobeyed by the appellant. The instant case is a glaring example of non-application of mind and non- observance of procedure prescribed by law for dealing with such matters. Entire proceedings have been conducted in most casual and cavalier manner. „

8. In the aforesaid decision, the Hon’ble Supreme Court has referred to the decision in Rama Narang Vs. Ramesh Narang & Another (cited supra), had held that when there is a decree passed by the civil court with regard to the permanent injunction, and if the said decree is violated, the decree holder has to file an Execution Petition by invoking the provision under Order 21 Rule 32 CPC and he cannot resort to the contempt proceedings under the Contempt of Courts Act.

9. In this case, admittedly, the petitioner herein had filed a suit for the relief of permanent injunction restraining the respondent from putting up any further construction in the suit property and the said suit was decreed and the appeal which was filed by the respondent also dismissed and he filed the second appe

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al and during pendency of the said second appeal, he filed an undertaking affidavit stating that the appellant Corporation had no intention to put up further construction over the suit property. 10. Recording the said undertaking, this court had dismissed the said second appeal on 06.12.2006. So, it is clear that the decree which was passed by the trial court and confirmed by the first appellate court did not set aside by this court in S.A.No.1498 of 2005. In such a case, it is open to the petitioner who is being the decree holder can file an execution petition by invoking the provisions of Order 21 Rule 32 of CPC. Instead of that, he cannot file a Contempt Petition as held by the Hon’ble Supreme Court in Kanwar Singh Saini Vs. High Court of Delhi (cited supra). Therefore, this petition is not maintainable and the same is liable to be dismissed. 11. In the result, this petition is dismissed. It is open to the petitioner to invoke the provisions of Order 21 Rule 32 of CPC.
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