2009 Supreme(SC) 554

2009(3) Supreme 240
SUPREME COURT OF INDIA
(From Allahabad High Court)
R.V. Raveendran and Markandey Katju, JJ.
Food Corporation of India — Appellant
versus
Sukh Deo Prasad — Respondent
Civil Appeal No. 380 of 2007
Decided on : 24-03-2009

IMPORTANT POINT
Contempt jurisdiction, is not intended to be used for enforcement of money decrees or directions/orders for payment of money.

Headnote:(a) Code of Civil Procedure, 1908 – Order XXXIX, Rules 1 and 2 – An interim direction to a defendant-tenant in a suit by the creditor against the landlords/borrowers, to deposit the arrears of rent in court and to continue the deposit the rents in court with a condition that the tenant will have to pay interest if the rent was not so deposited, cannot be considered to be an order of ‘injunction’. (Para 16)

        (b) Code of Civil Procedure, 1908 – Order XXXIX, Rules 1 and 2 – An injunction is a judicial mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a particular thing – A direction to pay money either by way of final or interim order, is not considered to be an ‘injunction’. (Para 16)

        (c) Code of Civil Procedure, 1908 – Order XXXIX, rule 2A – An application would be maintainable only in case of violation of an order of injunction passed under rules 1 or 2 – The instant order not being an injunction u/r 1 or 2, the application u/r 2A was not maintainable. (Para 18)

        (d) Code of Civil Procedure, 1908 – Order XXXIX, rule 2A – When the plaintiff did not complain of any disobedience of the order, a co-defendent did not have any locus standi to invoke rule 2A. (Para 19)

        (e) Code of Civil Procedure, 1908 – Order XXI, rule 46 – The amount due by a garnishee, if disputed has to be determined – Court can determine the extent of liability of the garnishee – Instantly, there being no adjudication of the amount payable by FCI and the plaintiff bank having no complaint or grievance, application under Order XXXIX, rule 2A was not maintainable. (Para 20)

        (f) Code of Civil Procedure, 1908 – Order XXI, rule 46B – In case of a garnishee, or a defendant not paying the amount, the remedy is to levy execution and not in an action for contempt or disobedience/breach under order 39 Rule 2A – Contempt jurisdiction, is not intended to be used for enforcement of money decrees or directions/orders for payment of money. (Para 21)

        (g) Code of Civil Procedure, 1908 – Order XXXX, rule 2A – The power under the provision is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971 – The person complaining of disobedience or breach has, therefore, to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order – Court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the ‘order’, on surmises suspicions and inferences – The power under Rule 2A should be exercised with great caution and responsibility. (Para 24)

        (h) Code of Civil Procedure, 1908 – Section 96 – High Court summarily dismissing the appeal without going into the vital issues – Not sustainable. (Para 26)

       Facts of the case :

        1. In the year 1976, the respondent (Sukh Deo Prasad) offered to construct and let out godowns to FCI. For that purpose, the respondent and his brother V.K.Shukla obtained a term loan of Rs.10 lakhs from the State Bank of India, Jhansi Branch on 31.8.1977 and as security therefor mortgaged their land and house property in favour of the Bank by deposit of title deeds. The repayment of the said loan was also guaranteed by one Raj Narain Khare and Shri Kishan on 6.10.1977. In addition, another sum of Rs.5 lacs was sanctioned by the bank, by way of term loan to the respondent on 29.8.1977, repayment of which was guaranteed by one Ram Kishore Gupta and Khachore.

        2. Three godowns were constructed by the respondent and his brother and let out to FCI for a term of five years in the year 1978. On the instructions of the lessors, FCI credited the rents to the loan account of the landlords with the bank. FCI vacated the said godowns and surrendered back possession in December, 1983.

        3. The bank filed Suit against the respondent, the wife and son of his brother V.K.Shukla, Raj Narain Khare and Ram Kishore Gupta and Khachore for recovery of Rs.20,68,120.74 with interest at the rate of 11% with monthly rents, by sale of the mortgaged properties and for recovery of the balance amount, if any, personally from the defendants.

        4. Defendants 1 to 3 in the suit contended that the FCI should be made a party to the suit and made liable for payment of the suit claim. By order dated 18.5.1994, the court directed FCI be impleaded as the seventh defendant in the suit. FCI was not given any opportunity to show cause before being impleaded.

        5. In June 1994, during the pendency of the said suit, the respondent and his son Sunil Kumar offered a fresh lease of one of the three godowns and the appellant took it temporarily on a month to month tenancy. The tenancy agreement made it clear that FCI could surrender back the godown without any notice, whenever the same was not required.

        6. On 18.1.1996 the bank filed an application in its suit, seeking an interim direction to FCI to restrain it from paying the rent for the said godown to defendants 1 to 3 and for a further interim direction to FCI to deposit the rents relating to the godown, to the loan account of defendants 1 to 3 with the bank.

        7. The trial court allowed the said application.

        8. FCI vacated the said godown taken on rent in June 1994 on 7.2.1997. It informed the landlords that it had deposited the rents upto December 1996 in the Bank in terms of the order dated 27.5.1996 and sent the FD receipt to the court.

        9. The respondent filed application (Misc. 49/1998) under Order 39 Rule 2A of the Code against FCI, its Senior Regional Manager and three District managers praying that action should be taken against FCI and its officers for contempt, for not depositing the rents in terms of order dated 27.5.1996.

        10. The trial court allowed the said application. Acting on a calculation sheet provided by the respondent, it held that a sum of Rs.1,12,24,792.99 was due by FCI towards such rent and interest; and as the said amount was not deposited, FCI was liable to be punished under Order 39 Rule 2A of the Code for disobedience of the order dated 27.5.1996. It therefore directed that the assets of FCI, both movable and immovable, should be attached under order 39 Rule 2A CPC in respect of the said sum of Rs.1,12,24,792.99.

        11. FCI filed an appeal before the High Court which dismissed it by a brief order.

       Finding of the Court :

        Impugned judgment cannot be sustained.

       Result : Appeal allowed with cost.