# CASE DETAILS BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS

- **Citation:** 2023 INSC 805
- **Court:** Supreme Court of India
- **Decided:** 2023-09-06
- **Case number:** Civil Appeal No. 4955 of 2022
- **Bench:** J. B. Pardiwala, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-balwantbhai-somabhai-bhandari-v-hiralal-somabhai-contractor-36396
- **Pages:** 71

## Headnote

Issues for consideration: Whether the wilful breach of an assurance
in the form of an undertaking given by a counsel/ advocate on behalf of his
client to the court would amount to "civil contempt" as defi ned u/s. 2(b) of
the Contempt of Court Act, 1971; whether the said undertaking could be
said to have been given to the court; whether the contempt court has the
power to declare any contemptuous transaction non est or void; whether
the benefi ciaries of a contemptuous transaction have a right to be heard in
the contempt proceedings on the ground that they are necessary or proper
parties as they are bona fi de purchasers of the suit property for value without
notice; and whether the apology tendered by the contemnors deserves to
be accepted.
Contempt of Courts Act, 1971 - s. 19 - Statutory appeals under
- Statement made by the counsel appearing for the contemnors before
the High Court in the form of an undertaking upon instructions of the
clients that the property would not be sold till the disposal of the main
petition - However, despite the undertaking, the appellants proceeded
to execute sale deeds in favour of diff erent parties and thereby, wilfully
disobeyed the order passed by the High Court - Contemnors held
guilty of contempt by the High Court and the sale transactions held to
be void - Correctness:
Held: High Court did not commit any error in passing the impugned
judgment and order - Undertaking was given to the High Court and the
breach or disobedience would attract the provisions of the 1971 Act. [Paras
116 and 117]
[2023] 11 S.C.R. 1064 : 2023 INSC 805
1064
1065
Contempt of Court Act, 1971 - s. 2(b) - Expression 'wilful
disobedience' - Meaning of - Wilful breach of an assurance in the form
of an undertaking given by a counsel/advocate on behalf of his client
to the court, if would amount to 'civil contempt' as defi ned u/s. 2(b):
Held: Expression "wilful" means act or omission which is done
voluntarily or intentionally and with the specifi c intent to do something
which the law forbids or with the specifi c intent to fail to do something the
law requires to be done, with bad purpose either to disobey or to disregard
the law - It signifi es a deliberate action done with evil intent or with a bad
motive or purpose - Assurance in the form of an undertaking given by a
counsel/advocate on behalf of his client to the court, the wilful breach or
disobedience of the same would amount to 'civil contempt' as defi ned u/s.
2(b) of the 1971 Act . [Paras 56 and 116(i)]
Contempt of Court Act, 1971 - s. 2(b) - Term Undertaking -
Meaning of - Undertaking by the counsel, if undertaking given to the
court:
Held: Every undertaking given by a party to a litigation may not be an
undertaking to the court - There exists a distinction between an undertaking
given to a party to the lis and the undertaking given to a court - Undertaking
given to a court attracts the provisions of the 1971 Act whereas an
undertaking given to a party to the lis by way of an agreement of settlement
or otherwise would not attract the provisions of the 1971 Act - Breach of
an undertaking given to the other party may not constitute the contempt of
court - However, whether a particular undertaking is an undertaking to the
court or to the opposite party depends upon the facts and circumstances of
each case and the language used - On facts, the undertaking could be said
to have been given to the court - Wilful breach of an assurance in the form
of an undertaking given by a counsel/advocate on behalf of his client to
the court would amount to "civil contempt" as defi ned u/s. 2(b) . [Paras 72,
73, 76-77 and 116(ii)]
Contempt of Court Act, 1971 - Contempt of court - Transfer of
suit property in contempt proceedings - Power of the contempt court
to declare any contemptuous transactions non est or void:
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
1066
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Held: Though the transfer of th

## Text

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CASE DETAILS
BALWANTBHAI SOMABHAI BHANDARI
v.
HIRALAL SOMABHAI CONTRACTOR (DECEASED) REP. BY
LRS. & ORS.
(Civil Appeal No. 4955 of 2022)
SEPTEMBER 06, 2023
[J. B. PARDIWALA AND MANOJ MISRA, JJ.]
HEADNOTES
Issues for consideration: Whether the wilful breach of an assurance
in the form of an undertaking given by a counsel/ advocate on behalf of his
client to the court would amount to "civil contempt" as defi ned u/s. 2(b) of
the Contempt of Court Act, 1971; whether the said undertaking could be
said to have been given to the court; whether the contempt court has the
power to declare any contemptuous transaction non est or void; whether
the benefi ciaries of a contemptuous transaction have a right to be heard in
the contempt proceedings on the ground that they are necessary or proper
parties as they are bona fi de purchasers of the suit property for value without
notice; and whether the apology tendered by the contemnors deserves to
be accepted.
Contempt of Courts Act, 1971 - s. 19 - Statutory appeals under
- Statement made by the counsel appearing for the contemnors before
the High Court in the form of an undertaking upon instructions of the
clients that the property would not be sold till the disposal of the main
petition - However, despite the undertaking, the appellants proceeded
to execute sale deeds in favour of diff erent parties and thereby, wilfully
disobeyed the order passed by the High Court - Contemnors held
guilty of contempt by the High Court and the sale transactions held to
be void - Correctness:
Held: High Court did not commit any error in passing the impugned
judgment and order - Undertaking was given to the High Court and the
breach or disobedience would attract the provisions of the 1971 Act. [Paras
116 and 117]
[2023] 11 S.C.R. 1064 : 2023 INSC 805
1064
1065
Contempt of Court Act, 1971 - s. 2(b) - Expression 'wilful
disobedience' - Meaning of - Wilful breach of an assurance in the form
of an undertaking given by a counsel/advocate on behalf of his client
to the court, if would amount to 'civil contempt' as defi ned u/s. 2(b):
Held: Expression "wilful" means act or omission which is done
voluntarily or intentionally and with the specifi c intent to do something
which the law forbids or with the specifi c intent to fail to do something the
law requires to be done, with bad purpose either to disobey or to disregard
the law - It signifi es a deliberate action done with evil intent or with a bad
motive or purpose - Assurance in the form of an undertaking given by a
counsel/advocate on behalf of his client to the court, the wilful breach or
disobedience of the same would amount to 'civil contempt' as defi ned u/s.
2(b) of the 1971 Act . [Paras 56 and 116(i)]
Contempt of Court Act, 1971 - s. 2(b) - Term Undertaking -
Meaning of - Undertaking by the counsel, if undertaking given to the
court:
Held: Every undertaking given by a party to a litigation may not be an
undertaking to the court - There exists a distinction between an undertaking
given to a party to the lis and the undertaking given to a court - Undertaking
given to a court attracts the provisions of the 1971 Act whereas an
undertaking given to a party to the lis by way of an agreement of settlement
or otherwise would not attract the provisions of the 1971 Act - Breach of
an undertaking given to the other party may not constitute the contempt of
court - However, whether a particular undertaking is an undertaking to the
court or to the opposite party depends upon the facts and circumstances of
each case and the language used - On facts, the undertaking could be said
to have been given to the court - Wilful breach of an assurance in the form
of an undertaking given by a counsel/advocate on behalf of his client to
the court would amount to "civil contempt" as defi ned u/s. 2(b) . [Paras 72,
73, 76-77 and 116(ii)]
Contempt of Court Act, 1971 - Contempt of court - Transfer of
suit property in contempt proceedings - Power of the contempt court
to declare any contemptuous transactions non est or void:
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
1066
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Held: Though the transfer of the suit property pendente lite may not
be termed as void ab initio yet when the court is looking into such transfers
in contempt proceedings the court can defi nitely declare such transactions
to be void in order to maintain the majesty of law - Apart from punishing
the contemnor, the majesty of law may demand that appropriate directions
be issued by the court either for reversal of the transactions by declaring
the said transactions to be void or proceed to pass appropriate directions
to the concerned authorities to ensure that the contumacious conduct on
the part of the contemnor does not continue to enure to the advantage of
the contemnor or anyone claiming under him - On facts, the High Court
justifi ed in declaring all the sale deeds executed by the contemnors in favour
of the purchasers as non est; and that the sale deeds stand cancelled and set
aside - Transfer of Property Act, 1882 - s. 52. [Paras 88, 89 and 116(iii)]
Contempt of Court Act, 1971 - Contempt of court - Contempt
proceedings - Impleadment of benefi ciaries of any contumacious
transaction as necessary parties:
Held: Benefi ciaries of any contumacious transaction have no right
or locus to be heard in the contempt proceedings on the ground that they
are bona fi de purchasers of the property for value without notice and thus,
are necessary parties - Contempt is between the court and the contemnor
and no third party can involve itself into the same - It was not necessary
for the High Court to implead the purchasers in the contempt proceedings
- Purchasers were quietly watching the proceedings - It is not as if they
were not aware of what was happening however, when things went wrong,
they now cry foul of not being impleaded as parties and heard by the High
Court - Necessary parties. [Paras 97 and 116(iv)]
Contempt of Court Act, 1971 - s. 12 - Punishment for contempt
of court - Apology tendered by the contemnors - Acceptance of:
Held: Apology tendered should not be accepted as a matter of
course and the court is not bound to accept the same - Apology may be
unconditional, unqualifi ed and bona fi de, still if the conduct is serious, which
has caused damage to the dignity of the institution, the same should not be
accepted - There ought not to be a tendency by courts, to show compassion
when disobedience of an undertaking or an order is with impunity and
with total consciousness - All throughout the proceedings before the High
1067
Court, the stance of the appellants was that they committed a big mistake
by executing the sale deeds despite having given a clear-cut undertaking to
the court that they would not do so - In such circumstances, the appellants
pleaded before the High Court that their apology may be accepted and
they may be discharged from the proceedings - Though the apology was
tendered before the High Court in the fi rst instance, yet such apology does
not deserve to be accepted and was rightly not accepted by the High Court.
[Paras 100, 113 and 116(v)]
Judicial notice - Matters pertaining to contempt of court:
Held: It is noticed that the courts have shown undue leniency and
magnanimity towards the contemnors - Lenient attitude shown by the courts
actually emboldens unscrupulous litigants to disobey or commit breach of
the order passed by any court or any undertaking given to the court with
impunity - Litigants, proceeded for contempt of court have realised that they
have a very potent weapon in their hands in the form of apology - There
ought not to be a tendency by courts to show compassion when disobedience
of an undertaking or an order is with impunity and with total consciousness.
[Paras 101 and 102]
Contempt of Court Act, 1971 - s. 12 - Punishment for contempt of
court - Apology u/s. 12 - Concept of - Explained. [Paras 99, 111, 112]
Contempt of Court - Contempt Jurisdiction - Exercise of -
Governing principles- Stated. [Paras 40-45]
Contempt of Court - Civil contempt - Commission of - Conditions
to be satisfi ed - Stated. [Para 43]
LIST OF CITATIONS AND OTHER REFERENCES
Mohd. Aslam v. Union of India (1994) 6 SCC 442 : [1994] 5 Suppl.
SCR 104; Rama Narang v. Ramesh Narang and Another (2006) 11 SCC 114 :
[2006] 3 SCR 1068; Anil K. Surana and Another v. State Bank of Hyderabad
(2007) 10 SCC 257; Bharat Steel Tubes Limited v. IFCI Limited (2010) 14
SCC 77 : [2010] 15 SCR 993; Abhishek Kumar Singh v. G. Pattanaik and
Others (2021) 7 SCC 613; Murray & Co. v. Ashok Kr. Newatia & Another,
(2000) 2 SCC 367 : [2000] 1 SCR 367; T. Ravi and Another v. B. Chinna
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
1068
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Narasimha and Others (2017) 7 SCC 342: [2017] 3 SCR 1; Sevakram
Prabhudas v. H.S. Patel and Others, 2000 (1) vol. 41 GLR 715; Mrityunjoy
Das and Another v. Sayed Hasibur Rahaman and Others, (2001) 3 SCC 739
: [2001] 2 SCR 471; Supreme Court Bar Association v. Union of India and
Another, (1998) 4 SCC 409 : [1998] 2 SCR 795; Reliance Petrochemicals
Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and
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Dhulabhai and Another v. Patel Chandrakant Dhulabhai and Others, (2008)
14 SCC 561 : [2008] 10 SCR 1169; Kanwar Singh Saini v. High Court of
Delhi, (2012) 4 SCC 307 : [2011] 15 SCR 972; Niaz Mohammad and Others
v. State of Haryana and Others, (1994) 6 SCC 332 : [1994] 3 Suppl. SCR
720; Ashok Paper Kamgar Union v. Dharan Godha and Others, (2003) 11
SCC 1; Ram Kishan v. Tarun Bajaj and Others, (2014) 16 SCC 204 : [2014]
1 SCR 538; Bajranglal Gangadhar Khemka and another v. Kapurchand
Ltd. AIR 1950 Bom 336; Nisha Kanto Roy Chowdhuri v. Smt. Saroj Bashini
Goho AIR 1948 Cal 294; Chhaya Debi v. Lahoriram Prashar, (1962-63)
67 CWN 819; Suman Chadha and Another v. Central Bank of India, 2018
SCC Online Del 11536; Rita Markandey v. Surjit Singh Arora, (1996) 6 SCC
14 : [1996] 7 Suppl. SCR 56; Govind Kaur v. Hardev 1982 (1) RCR 323
(13); State Bank of India and Others v. Dr. Vijay Mallya, 2022 SCC Online
SC 826; Satyabrata Biswas and Others v. Kalyan Kumar Kisku and Others
(1994) 2 SCC 266 : [1994] 1 SCR 413; Thomson Press (India) Limited v.
Nanak Builders and Investors Private Limited and Others, (2013) 5 SCC 397
: [2013] 2 SCR 74; Delhi Development Authority v. Skipper Construction Co.
(P) Ltd. and Another, (1996) 4 SCC 622 : [1996] 2 Suppl. SCR 295; Vidur
Impex and Traders Private Limited and Others v. Tosh Apartments Private
Limited and Others, (2012) 8 SCC 384 : [2012] 10 SCR 307; Jehal Tanti
and Others v. Nageshwar Singh (Dead) THR. LRS., AIR 2013 SC 2235;
In Re: Mafatlal Industries Ltd. O.J. Appeal No. 16 of 1994 in Company
Petition No. 22 of 1994 decided on 12.07.1996; Surjit Singh and Others
etc. etc. v. Harbans Singh and others, AIR 1996 SC 135 : [1995] 3 Suppl.
SCR 354; Sarvinder Singh v. Dalip Singh and Others, (1996) 5 SCC 539 :
[1996] 4 Suppl. SCR 271; Bibi Zubaida Khatoon v. Nabi Hassan Saheb and
Another, (2004) 1 SCC 191 : [2003] 5 Suppl. SCR 290; Dhurandhar Prasad
Singh v. Jai Prakash University and Others, (2001) 6 SCC 534 : [2001] 3
1069
SCR 1129; D.N. Taneja v. Bhajan Lal, (1988) 3 SCC 26 : [1988] 3 SCR
888; Tapan Kumar Mukherjee v. Heromoni Mondal and Another, (1991) 1
SCC 397 : [1990] 3 Suppl. SCR 55; Sub-Judge, First Class, Hoshangabad
v. Jawahar Lal Ramchand Parwar AIR 1940 Nagpur 407; Priya Gupta and
Another v. Additional Secretary, Ministry of Health and Family Welfare and
Others, (2013) 11 SCC 404 : [2012] 12 SCR 818; M.Y. Shareef and another
v. Hon'ble Judges of the Nagpur High Court and others, AIR 1955 SC 19
: [1955] SCR 757 - referred to.
M. v. Home Offi ce and Another (1992) Q.B. 270 : (1992) 2 WLR 73
: (1992) 4 All ER 97; Clarke and others v. Chadburn and others (1985) 1
All ER 211 - referred to.
Black's Law Dictionary, Sixth Edition, pg 1599; Black's Law
Dictionary, Fifth Edition - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4955 of 2022.
From the Judgment and Order dated 13.07.2022 of the High Court of
Gujarat at Ahmedabad in Misc. Civil Application No.121 of 2018 in Special
Civil Application No. 16266 of 2013.
With
Civil Appeal Nos. 5041 of 2022 and 4869 of 2023.
Appearances:
Shyam Divan, Kapil Sibal, Mihir Joshi, Mukul Rohatgi, Sr. Advs.,
Ms. Meenakshi Arora, Gaurav Singh, Soumik Ghosal, Shamik Shirishbhai
Sanjanwala, Siddharth Srivastava, Vanshdeep Dalmia, Ms. Devanshi Singh,
Shivam Pundhir, Advs. for the Appellant.
Arijit Prasad, Sr. Adv., Nachiket A. Dave, Pradhuman Gohil, Mrs.
Taruna Singh Gohil, Ms. Ranu Purohit, Alapati Sahithya Krishna, Ms.
Nidhi Mittal, Rushabh N. Kapadia, Vijayanand Tripathi, Advs. for the
Respondents.
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
1070
SUPREME COURT REPORTS
[2023] 11 S.C.R.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J.:
"When we speak of the 'rule of law' as a characteristic of our country,
(we mean) not only that with us no man is above the law, but (what is a
diff erent thing) that here every man, whatever be his rank or condition, is
subject to the ordinary law of the realm and amenable to the jurisdiction
of the ordinary tribunals. Respect for law and its institutions is the
only assurance that can hold a pluralist nation together. Any attempt to
achieve solutions to controversies, however, ideologically and emotionally
surcharged, not on the basis of law and through judicial institutions, but
on the strength of numbers will subvert the fundamental values of our
chosen political organisation. It will demolish public faith in the accepted
constitutional institutions and weaken people's resolve to solve issues by
peaceful means. It will destroy respect for the Rule of Law and the authority
of courts and seek to place individual authority and strength of numbers
above the wisdom of law."
Mohd. Aslam v. Union of India,

(1994) 6 SCC 442.
1. Since the issues raised in all the captioned appeals are the same; the
parties are also same and the challenge is also to the self-same judgment
passed by the High Court of Gujarat those were taken up for hearing
analogously and are being disposed of by this common judgment and order.
2. There are in all three appeals before us.
3. The Civil Appeal No. 4955 of 2022 and Civil Appeal No. 5041 of
2022 are statutory appeals under Section 19(1) of the Contempt of Courts
Act, 1971 (for short, 'the Act 1971') fi led by the contemnors who stood
punished by the High Court whereas the Civil Appeal No. 4869 of 2023 is an
appeal fi led at the instance of the benefi ciaries of contemptuous transactions
with the permission of this Court. In other words, the appellants of Civil
Appeal No. 4869 of 2023 are the purchasers of the suit properties from the
contemnors. The benefi ciaries of the contemptuous transactions are also
1071
before this Court as the High Court while holding the appellants of the two
statutory appeals referred to above guilty of contempt for their deliberate
and wilful disobedience of the undertaking given to the court also declared
the sale transactions to be void.
STATUTORY APPEALS UNDER SECTION 19 OF THE
CONTEMPT OF COURTS ACT, 1971
4. The appellants of the two statutory appeals have been held guilty
of contempt by the High Court of Gujarat for their deliberate and wilful
disobedience of the undertaking given to the concerned Court, which came
to be recorded vide order dated 14.10.2015 passed in the Special Civil
Application No. 16266 of 2013. The impugned order passed by the High
Court holding the appellants guilty of contempt dated 13.07.2022 came
to be passed in the Misc. Civil Application No.121 of 2018 fi led by the
respondents herein in the Special Civil Application No. 16266 of 2013.
5. The operative part of the impugned order passed by the High Court
reads thus:
"ORDER
(i)
We hold that accused Nos. 3.1 to 3.4 and accused No. 4 guilty
of Contempt for their deliberate and wilful disobedience of the
undertaking given to this Court which came to be recorded by
order dated 14.10.2015 passed in Special Civil Application No.
16266 of 2013.
(ii) We impose cost of Rs. 1,00,000/- (Rupees One Lakh only)
on accused Nos.3.1 and 3.2 in lieu of sentencing them to
imprisonment and in addition direct them to pay fi ne of Rs.
2,000/- (Rupees Two Thousand only) each and the amount of
fi ne shall be paid within a period of three weeks from today and
in default thereof they shall undergo simple imprisonment for a
period of two (2) months.
(iii) We sentence accused Nos. 3.3, 3.4 and accused No. 4 to undergo
simple imprisonment for a period of two months and pay fi ne of
Rs. 2,000/- (Rupees Two Thousand only) each and in default to
undergo simple imprisonment for a period of two (2) months.
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
1072
SUPREME COURT REPORTS
[2023] 11 S.C.R.
(iv) It is declared that following sale deeds executed by accused Nos.
3.1 to 3.4 through accused no. 4 as power of attorney holder in
favour of purchaser as non est and it is hereby ordered to be
cancelled, quashed and set aside and respondents are directed to
restore the position which was prevailing prior to the execution
of the aforesaid sale deeds which was prevailing at the time of
the order dated 14.10.2015 passed in Special Civil Application
No. 16266 of 2013.
The said sale deeds are as follows: -
LIST OF SALE DEEDS
Sr.
No.
Sale Deed
Date
Plot
Area
Plot
No.
Consideration
Name of the
purchaser
1
9-11-15
118.48
79
103115/-
Jagdish Chug
2
9-11-15
118.48
80
103115/-
Rama Rani
3
19-2-16
118.48
119A
8500/-
Prakash Kundu
4
19-2-16
118.48
199B
8500/-
Prakash Kundu
5
19-2-16
118.48
200
8500/-
Prakash Kundu
6
15-3-16
118.48
122B
(56)
8500/-
Mafatlal Kalidas
HUF
7
15-3-16
118.48
122C
(55)
8500/-
Mafatlal Kalidas
HUF
8
17-5-17
152
27
8500/-
Sudesh Dingra
9
17-5-17
152
27A
8500/-
Shilpi Ravi
10
17-5-17
152
28
8500/-
Roshan Lal
11
25-7-17
118.48
176
8500/-
Sami Kumar
2,82,730/-
3 Sale deeds done /added afterwards
12
30-10-18
19.26
Shop
No. 7
49000/-
Trilokram Mali
13.
25-7-17
118.48
175
8500/-
Yogesh kumar Patel
Total
3,40,230/-
1073
The Jurisdictional Sub-Registrar/s be informed to make necessary
entries in the records accordingly.
(v)
It would be open for the purchasers to recover the amount of sale
consideration from the accused Nos. 3.1 to 3.4 and accused no.
4.
(vi) The present Misc. Civil Application stands allowed with costs
quantifi ed at Rs. 1,00,000/- payable jointly and severally by
accused nos. 3.1 to 3.4 and accused no. 4 to the applicants
towards the cost of the present proceedings.
64. After pronouncement of the above order, Mr. Mihir Joshi,
learned Senior Advocate seeks for stay of operation of this
judgment for a period of four weeks. Having regard to the facts
of above case, we are of the considered view that it would be
just and necessary to stay this order for a period of four weeks
from today. Accordingly, we grant stay of this judgment for a
period of four weeks from today subject to accused Nos. 3.1
to 3.4 and accused No. 4 depositing of fi ne amount and costs
as ordered hereinabove before this Court within two weeks
from today."
6.. It all started with an order passed by a learned Single Judge of the
High Court dated 14.10.2015 in the Civil Appeal No. 11412 of 2015 in the
Special Civil Application No. 16266 of 2013 referred to above. The order
dated 14.10.2015 referred to above reads thus:
"It is stated at the Bar by Mr. Sanjanwala learned senior advocate,
on instructions from his clients, that the property qua the subject
matter of this entry and the petition, shall not be sold out till the main
petition is heard and decided, which satisfi es the conscious of Mr.
Mihir Thakor learned senior advocate appearing with Mr. Prabhav
Mehta learned advocate and he states that he may not press the Letters
Patent Appeal, on instructions. Hence, this Civil Application stands
disposed of accordingly. It goes without saying that the order was
passed adinvitum/by consent of the learned advocates."
(Emphasis supplied)
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
1074
SUPREME COURT REPORTS
[2023] 11 S.C.R.
7. Thus, it appears that a statement was made by the learned counsel
appearing for the contemnors before the High Court in the form of an
undertaking and that too upon instructions of the clients that the subject
matter i.e., the property would not be sold till the main petition i.e., the
Special Civil Application No. 16266 of 2013 is fi nally disposed of.
8. On the strength of the aforesaid order one Letters Patent Appeal
(LPA) fi led by the respondents herein against an interim order also came to
be disposed of vide order dated 21.10.2015, which reads thus:
"Mr. Prabhav Mehta learned advocate for the applicants states that
in view of the order dated 14 October, 2015 passed by learned single
Judge in Civil Application No. 11412 of 2015 in SCA No. 16266 of
2013, wherein the statement is recorded that the property in question
qua the subject matter of this entry shall not be sold until the main
petition is heard and decided, he seeks permission to withdraw the
proceedings. Permission is granted. Accordingly, the Civil Application
No. 10627 of 2015 and LPA(Stamp) No. 1195 of 2015 in SCA No.
16266 of 2013 with the Civil Application (Stamp) No. 10539 of 2015
shall stand disposed of as withdrawn."
(Emphasis supplied)
9. It appears that despite having undertaken that the property qua the
subject matter of the disputed entry would not be disposed of till the fi nal
disposal of the main matter; the appellants herein proceeded to execute as
many as 13 sale deeds in favour of diff erent parties and thereby, wilfully
disobeyed the order dated 14.10.2015 passed by the High Court referred
to above.
10. In such circumstances referred to above, the respondents herein
preferred the Misc. Civil Application (Contempt) No. 121 of 2018 and
initiated contempt proceedings against the appellants herein. The High
Court framed the following points for its consideration:
"(i) Whether respondent Nos. 3.1 to 3.4 and 4th respondent have
willfully and deliberately disobeyed the order dated 14.10.2015 passed
in Civil Application (for direction) No.11412 of 2015 in Special Civil
Application No.16266 of 2013?
1075
(ii) Whether the contempt proceedings are liable to be dismissed on
the ground of delay as contended by the respondents or the contempt
application is liable to be dismissed on the ground of limitation
prescribed under Section 20 of the Contempt of Courts Act, 1971?
(iii) What order?"
ADJUDICATION BY HIGH COURT:
11. We shall give a fair idea as to how the High Court dealt with the
contempt proceedings. The High Court fi rst took notice of the various sale
deeds that came to be executed by the appellants herein between 09.11.2015
and 30.10.2018, which were in wilful disobedience of the undertaking given
to the High Court. The details are as under:
No. Index
Page
No.
Name of the Party
Plot
No.
Plot
area
Consid
eration
Conside
ration
as per
Index Value
Sale
Deed
date
1
157
Jagdish
Chug
79
118.48
103115/-
568704/-
9-11-15
2
158
Rama Rani
80
118.48
103115/-
568704/-
9-11-15
3
159
Prakash
Kundu
199A
118.48
8500/-
568704/-
19-2-16
4
160
Prakash
Kundu
199B
118.48
8500/-
568704/-
19-2-16
5
161
Prakash
Kundu
200
118.48
8500/-
568704/-
19-2-16
6
162
Mafatlal
Kalidas HUF
122B
(56)
118.48
8500/-
568704/-
15-3-16
7
163
Mafatlal
Kalidas HUF
122C
(55)
118.48
8500/-
568704/-
15-3-16
8
164
Sudesh Dingra
27
152
8500/-
729600/
17-5-17
9
165
Shilpi Ravi
27A
152
8500/-
729600/
17-5-17
10
166
Roshan Lal
28
152
8500/-
729600/
17-5-17
11
167
Sami Kumar
176
118.48
8500/-
568704/-
25-7-17
282730/-
6738432/-
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
1076
SUPREME COURT REPORTS
[2023] 11 S.C.R.
2 Sale deeds done / added afterwards
12
518
Trilokram Mali
Shop
No. 7
19.26
49000/-
298530/-
30-10-18
13
555
Yogesh Kumar
Patel
175
118.48
8500/-
568704/-
25-7-17
340230/-
7605666/-
12. The High Court, thereafter, in para 27 of its impugned judgment
took notice of the affi davit dated 23.01.2019 fi led by one of the contemnors.
Para 27 reads thus:
"27. In fact the 4th respondent in his affi davit dated 28.08.2005
fi led in the present proceeding also admits this fact in paragraph 6
which is already extracted herein supra. In fact in the affi davit dated
23.01.2019 fi led in the present contempt proceeding, 4th respondent
has categorically deposed to the following eff ect:
"I state that I am the power of attorney holder of other
respondents in Misc. Civil Application for contempt. I declare
that I had authorised Senior Advocate Shri S.H.Sanjanwala to
state before the Hon'ble Court that I will not transfer, sell Survey
No.63 and 65 situated at Majura till fi nal disposal of the Special
Civil Application No.16266 of 2013."
(Emphasis supplied)
13. In para 28, the High Court observed thus:
"28. As to what would be the evidentiary value of the statement made
by the learned Senior Advocate pressed into service at earlier point of
time in this proceedings has also received the attention of this Court. It
came to be observed by this Court on 29.01.2019 to the following eff ect:
"In the present proceedings, affi davits have been fi led by the
private respondents wherein unconditional apology is tendered
and a categorical statement is made that there is no scope
for justifi cation of the action of execution of Sale Deeds after
such consent was recorded; namely to maintain status-quo
on the subject land. In another affi davit, it is revealed that the
respondents have instructed the counsel to make statement on
1077
their behalf. Thus, there is no escapement from the action which
reveals willful, deliberate breach of undertaking and statement
made before the Court in the writ proceedings.""
(Emphasis supplied)
14. In para 31, the High Court proceeded to observe thus:
"31. In the instant case it can be noticed that at the behest of 4th
respondent, learned Senior Counsel representing the respondent
Nos.3.1 to 3.4 and 4th respondent had made a statement in Special
Civil Application No.16266 of 2013 while the learned Single Judge
was adjudicating Civil Application (for direction) No.11412 of 2015
fi led therein and an undertaking came to be given that the property qua
the subject matter of entry which was undisputedly relating to Survey
Nos.63 and 65 would not be sold and yet the same has been sold by
respondent Nos. 3.1 to 3.4 through their power of attorney holder 4th
respondent. Had this undertaking not been given obviously respondents
in Special Civil Application No.16266 of 2013 who were the appellants
in Letters Patent Appeal (Stamp) No.1196 of 2015 would not have
withdrawn the appeal as not pressed. It is this undertaking given to
this Court on 14.10.2015 which prevented the applicants herein to
withdraw the said appeal and it is this solemn assurance given to the
Court which per-forced them to withdraw the appeal by recording the
statement made by the learned Senior Counsel appearing on behalf
of respondent Nos.3.1 to 3.4 and 4th respondent."
(Emphasis supplied)
15. In para 33, the High Court took notice of the fact that the contemnors
Nos. 3.1 to 3.4 had not disputed the execution of the power of attorney in
favour of the 4th contemnor; they had not denied the execution of the sale
deeds; they had not even denied having received the benefi t under the sale
deeds; and they had also not denied that the power of attorney was not
cancelled. The High Court also took notice of the fact that the explanation
off ered by the contemnors that the sale deeds had to be executed as the sale
transactions had already been completed, was an afterthought and lacking
bona fi de.
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
1078
SUPREME COURT REPORTS
[2023] 11 S.C.R.
16. In para 35 of the impugned judgment, the High Court observed
that the contemnors had not only violated the undertaking given to the
court but had also taken undue advantage unto themselves, namely, the sale
consideration having fl own from the purchasers to the contemnors. The High
Court in this regard observed the following in para 35:
"35. In the instant case the contemnors have not only violated the
undertaking given to the Court but have also taken undue advantage
unto themselves namely the sale consideration has fl own from the
purchasers to the vendors i.e. the contemnors. Even according to the
recitals found in the Sale Deeds referred to in the tabular column
hereinabove, it is depicted as Rs.2,82,730/- (in respect of 11 Sale
Deeds); in respect of 2 Sale Deeds executed in the year 2017-18,
the consideration has been depicted as Rs.3,40,230/-. As per the
index value, the consideration amount or proper market value in
respect of 11 Sale Deeds would be Rs.67,38,432/-; whereas in respect
of 2 Sale Deeds the consideration or proper market value as per
index value would be Rs.76,05,666/-. In the reply affi davits fi led by
contemnors Nos.3.1 to 3.4, there is not even a whisper with regard
to consideration amount. They neither contend nor plead that the
consideration that has fl own under the said Sale Deeds have not
been received by them. On the contrary, the affi davit-in-rejoinder
fi led on behalf of the petitioners against the reply fi led by respondent
Nos.3.1 to 3.4, it has been specifi cally contended by the complainants
that contemners in order to hoodwink and overreach the process of
law, an imaginary plea has been projected by way of defense that
"cash" transaction of Rs.8,500/- took place for such sale in the year
2012 wherein no date is mentioned. In fact, the defence put-forth
by contemnor No.3.1 to the eff ect that she is a housewife, has been
denied in the rejoinder affi davit fi led by applicants by raising a
specifi c plea that in Special Civil Suit No.130 of 1995 fi led before
the 2nd Additional Senior Civil Judge, Surat, respondent No.4 in the
cross-examination has deposed that respondent No.3.1 is engaged in
the textile business and she is a Director of M/s. Surat Fabric Cap
Company Limited and in the same breath he has deposed that all
the members of the family were aware of the order dated 14.10.2015
1079
passed by this Court. Insofar as rejoinder affi davit to the reply
affi davit fi led by respondent No.3.2, complainants have specifi cally
contended that respondent No.3.2 was very well aware of the order
dated 14.10.2015 and same is the statement made in the rejoinder
affi davit fi led against the reply fi led by respondent No.3.3 and 3.4. It
is also contended that sale consideration depicted in the Sale Deeds
are farce and to overreach the order of the Court less consideration
has been refl ected as against the real value. To highlight this aspect in
paragraph 6(c) the complainants have contended at the relevant point
of time the Jantri value of the subject land was Rs.4,800/- per sq.mtr.
and the consideration depicted in the Sale Deed is at Rs.8,500/-. It is
also stated that consideration for the sale transaction for 118.80 sq.
mtrs. of land and for the land sold to the extent of 152.00 sq. mtrs.
are similar and hence the complainants contend that respondent
No.4 maliciously sold the subject property at under value rate and
has caused huge loss to the public exchequer. To highlight the fact
that alleged possession certifi cate which has been relied upon to
contend that sale transaction had already been completed way back
in the year 2012 when compared to the Sale Deed dated 09.02.2016,
it would clearly indicate that survey numbers depicted in both these
documents are distinct and diff erent. Hence, contending that the
possession receipts executed in favour of Prakash Kundu as well as
cash receipts produced on record are forged, bogus and concocted
and contrary to the facts, the complainants have sought for the said
documents being excluded from the purview of consideration of this
Court.".
(Emphasis supplied)
17. In para 36, the High Court took notice of the fact that the contemnors
in categorical terms had admitted in their affi davit fi led in the proceedings,
that they had sold the subject property though fully conversant and aware
of the undertaking given by them before the Court that they would not sell
the property till the disposal of the main petition.
18. In para 37, the High Court looked into the affi davit fi led by the
accused No. 4 (power of attorney holder) dated 28.08.2018. Para 37 reads
thus:
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
1080
SUPREME COURT REPORTS
[2023] 11 S.C.R.
"37. Whereas, the accused no. 4 categorically admits of execution
of sale deed, however, he tries to feign ignorance by deposing in his
affi davit dated 28.08.2018 to the following eff ect:-
"I say that the main allegation made against us is, that contrary
to the orders of this Hon'ble Court dated 14.10.2015, we have
sold the property to the persons who are mentioned in the indexed
documents annexed with the contempt application. I say that
I, bona fi de believed that, the transactions mentioned in the
indexed documents on page-157 onwards alleging contempt
against us, without trying to over justify the case, it is my duty
to point out the correct facts which led me to bona fi de believe
that sale was completed. I say that on page-158 copy of the index
register is produced regarding the sale in favour of Prashantbhai
Haradhanbhai Kondu, which is registered on 09.02.2016. I am
producing herewith a copy of the sale deed because, the index
produced by the applicant does not refl ect the correct position.
Hereto and marked as Annexure R1 is copy of the sale deed
dated 09.02.2016. It is very clear that the sale was completed on
21.08.2012, but it was only not registered. As per the defi nition
of sale, the transaction is complete since we have received the
consideration money and we had handed over the possession.
The said fact is also mentioned in the sale deed.""
(Emphasis supplied)
19. In para 40, the High Court took notice of the fact that even after
notice was issued to the contemnors in the contempt proceedings, they
continued to commit further acts contempt. Para 40 reads thus:
"40. The accused have continued to commit further contempt. We
say so for the reason that additional affi davit dated 06.04.2019 fi led
by complainant No. 1.1 enclosing the sale deed dated 30.10.2018
would clearly disclose that accused no. 4 on behalf of himself and
also on behalf of accused no. 3.1 to 3.4 had sold shop bearing No. 7
admeasuring 19.2 sq. mtrs. in the land bearing Survey No. 63 which
land was also agreed not to be sold by way of undertaking given to
this Court on 14.10.2015. Additional affi davit dated 18.07.2019 has
been fi led by complainant No. 1.1 which discloses another portion of
1081
land admeasuring 118.48 in Survey No. 63 has been disposed of vide
sale deed dated 25.07.2017. Respondent No. 4 who had been examined
as a witness in Special Civil Suit No. 130 of 1995 in his deposition
(Annexure B-2) has admitted that he was aware of the interim order
in which breach is alleged. In fact he has also deposed that all the
family members are well aware of the order dated 14.10.2015. His
admission reads thus:
"It is true that my Advocate. Mr. Shirishbhai Sanjanwala, under
my instructions, gave oral undertaking that for Survey No. 63
and 65 of Majura will not be sold till the fi nal outcome of CMA.
I do not remember it orally but it might be mentioned in the
Honourable High Court of Gujarat Application No. 16266/13
in reference to the undertaking given by me to my Advocate Mr.
Shirishbhai Sanjanwala, after reading over the order dated
14.10.2015 that what was the reason that he gave the assurance
on my behalf. I did not have the occasion of meeting advocate
Mr. Shirish Sanjanwala after 14.10.2015 or having discussion
with him.".
(Emphasis supplied)
20. The High Court thereafter, considered whether the unconditional
apology tendered by the contemnors deserved to be accepted and whether
they should be exonerated from the contempt proceedings or not. In this
regard, the High Court observed in paras 52 and 55 respectively as under:
"52.The accused no. 3.1 to 3.4 not having taken any steps as expected
of a reasonable prudent person to cancel the power of attorney given
to 4th respondent at the fi rst available opportunity but on the other
hand having sold the property even after notice of contempt being
served upon them, we are of the considered view that remorse expressed
or unconditional apology tendered by them cannot be accepted as
genuine and/or bona fi de. On the other hand, the conduct of accused
and particularly accused no. 3.1 to 3.4 not even cancelling sale deeds
would be suffi cient to arrive at a conclusion that contrition or remorse
expressed by them is not bona fi de and has been made to stave off
the contempt proceedings by making a show of apology having been
tendered and trying to take umbrage by contending that accused no.
BALWANTBHAI SOMABHAI BHANDARI v. HIRALAL
SOMABHAI CONTRACTOR (DECEASED) REP. BY LRS. & ORS.
[J. B. PARDIWALA, J.]
1082
SUPREME COURT REPORTS
[2023] 11 S.C.R.
3.1 and 3.2 are housewives cannot be allowed to take umbrage or use
the protective umbrella, and extending them of such benevolence would
result in pure stream of administration of justice being polluted by such
persons by feigning ignorance and as such we are of the considered
view that they should be dealt with iron hands.
×××
×××
×××
55. Applying the aforestated principle to the facts on hand as noticed
by us earlier in hereinabove, that accused No. 3.1 to 3.4 are attempting
to improve their case step by step and stage by stage and tendering
apology without any real contrition and same not being from the
heart but off ered as a lip sympathy to stave off the consequences that
would fl ow from their contemptuous act, the affi davit of apology has
been fi led. Had there been real remorse, they would have on notice
of contempt being served, forthwith cancelled the power of attorney
executed in favour of accused no. 4. However, they have not chosen to
do so. On the other hand, they have allowed him to continue to perform
duties as their agent and derived benefi ts out of it, which discloses
there is no real contrition expressed by them which would satisfy the
Courts' conscious..
(Emphasis supplied)
21. The High Court thereafter, proceeded to consider whether the
contempt proceedings were time barred. The High Court looked into Section
20 of the Act 1971 and took the view that the cause of action was recurring
in nature and the wrong had continued. The proceedings initiated were not
barred under Section 20 of the Act 1971.
22. In the last, the High Court recorded what had happened on the date
when the contemnors remained present in the court to answer the charge
framed against them. The High Court observed in para 61 as under:
"As such, this Court by order dated 18.12.2018 directed the contemnors
to be present personally and to answer as to why charge should not be
framed against them. In reply to the same, an affi davit has been fi led by
the contemnors on 24.12.2018 admitting thereunder the disobedience
and breach of the undertaking given to the Court. In the words of fourth
respondent, the admission reads to the following eff ect:
1083
"2.