judgement:
Civil Appeal Nos. 2853 and 2863 of 1982.
From the Judgment and order dated the 24th January, 1980 of the Allahabad High Court in Civil Revision No. 3452 of 1978.
D.C. Singhania, Raju Ramachandran, Muhul Mudgal, JP Gupta for the appellant in C.A. No. 2854/82.
S.N. Kacker, D.C. Singhania, Raju Ramachandran, Mukul judgal J.P. Gupta for the appellant in C.A. No. 2863/82.
610 KG.
Bhagat Addl.
Solicitor General for the respondent in C.A. No. 2853/82.
Girish Chandra, C. V. Subba Rao and R.N. Poddar for respondent in C.A. No. 2863/82.
The Judgment of the Court was delivered by MISRA J.
These two connected appeals by special leave are directed against the judgment and order of the Allahabad High Court and Delhi High Court dated 24th January, 1980 and 13th November, 1979 respectively.
The first one arises out of proceedings under s 20 of the while the other arises out of proceedings under section 33 of the .
These appeals raise a common question regarding the inter pretation of cl. 18 of the general conditions of contract contained in the standard from of contract entered into by the parties and the ambit and scope of section 41 of the .
The facts giving rise to these appeals follow a common pattern and it would, therefore, be sufficient if we set out the facts relating to Civil Appeal No. 2863 of 1982 to bring out clearly the points which arise for consideration in these appeals.
The appellant in this appeal is a registered firm and carries on the business of manufacturing and selling timber.
The Directorate General of Supplies and Disposals (for short, DGS&D) functions as a purchase organisation for the Government of India and makes purchases for various departments.
In response to an invitation for tender by the DGS&D for the supply of Bijasal logs first class the appellant firm made an offer to supply 1016 cubic metres at a flat rate of Rs. 669 per cubic metre.
The DGS&D accepted the tender on 24th of December, 1973.
Pursuant to the acceptance of the tender a standard form of contract was drawn up containing various clauses.
Two important clauses of that standard from of contract with which we are mainly concerned are cls; 18 and 24, which read: "18.
Recovery of Sums Due: Whenever any claim for the payment of a sum of money arises out of or under the contract against the contractor, the purchaser shall be entitled to recover such sum by appropriating in whole or in part, the security, if any, deposited by the contrac 611 tor, and for the purpose aforesaid, shall be entitled to sell and/or realise securities forming the whole or part of any such security deposit.
In the event of the security being insufficient, the balance and if no security has been taken from the contractor, the entire sum recoverable shall be recovered by appropriating any sum then due or which at any time thereafter may become due to the contractor under the contract or any other contract with the purchaser or the Government or any person contracting through the Secretary.
If such sum even be not sufficient to cover the full amount recoverable, the contractor shall on demand pay to the purchaser the balance remaining due . . " "24.
Arbitration: In the event of any question, dispute or difference arising under these conditions or any special conditions of contract, or in connections with this contract (except as to any matters the decision of which is specially provided for by these or the special conditions) the same shall be referred to the sole arbitration of any officer in the Ministry of Law, appointed to be the arbitrator by the Director General of Supplies and Disposals.
It will be no objection that the arbitrator is a Government servant, that he had to deal with the matters to which the contract relates or that in the course of his duties as a Government servant he has expressed views on all or any of the matters in dispute or difference.
The award of the arbitrator shall be final and binding on the parties to this contract.
" The appellant, however, ailed to supply the goods.
The contract was cancelled on 28th of August, 1974 at the risk and cost of the appellant.
The DGS&D claims to have made risk purchases incurring an extra cost of Rs. 92,364.
By notice dated 27th December, 1974 the DGS&D called upon the appellants to pay that amount failing which alternating arrangements would be made to recover the same.
It appears that there were some other contracts between the appellant and the respondent whereunder the appellant has supplied goods and payments were due to it under pending bills.
The appellant firm moved a petition under s 33 of the before the court alleging that there was no concluded 612 contract in existence between the parties containing any arbitration clause and prayed inter alia for determining the.
existence, validity and effect of the alleged arbitration agreement.
The stand of the Union of India on the other hand is that there was a concluded contract between the parties and the appellant firm was bound by the acceptance of the tender.
As the Union of India threatened to withhold the amount of Rs. 92,364 from the payments due under the pending bills of other contracts, the appellant firm sought for an injunction.
Under section 41 read with Second Schedule of the , and o. 39, rr. 1 and 2 read with section 151 of the Code of Civil Procedure, restraining the respondents from appropriating, withholding or recovering the amount claimed from its other bills in any manner whatsoever.
As there was cleavage of opinion between the Judges of the same High Court on the question whether such an injunction as prayed for could be issued under section 41 of the , the learned Single Judge referred the matter to a larger Bench.
The learned Single Judge 's own view was that such an injunction could be issued under section 41.
The Division Bench on reference, however, held that the Court could grant an injunction restraining the respondent from appropriating or recovering the amount of damages claimed from appellant 's other pending bills, but No order restraining the Union of India from withholding payments of the other pending bills could be issued under section 41 of the in as much as it would amount to a direction to pay the amount due Under other bills and such a prayer would virtually amount to seeking a relief for decreeing the claim of the appellant in Those contracts.
The appellant has come up before this Court against this order by special leave, as stated earlier.
It appears that a large number of applications under section 33 of the had been moved in Delhi High Court in similar matters.
In some of the cases injunctions were also issued by the learned Single Judge restraining the respondents from recovering, appropriating or withholding the amount from other bills of the contractors.
One of these matters Union of India vs Air Foam Industries was taken to this Court, which was decided by the Court along with Union of India vs Raman lron Foundry.(1) In that case 613 the Union of India put forward the extreme claim that by virtue of cl. 18 of General Conditions of Contract it was entitled to recover damages claimed by appropriating any sum which may become due to the contractor under other pending bills from the Union of India.
This Court, however, negatived the plea on the ground that the amount of damages claimed by the Union was only a claim and unless there was adjudication of the claim by Court or admission by the contractor the Union of India had no authority to appropriate the amount due under pending bills of the contractor towards the satisfaction of its claim for damages.
While construing the scope of section 41 (b) of the this Court held: "The Court has, therefore, power under section 41 (b) read with Second Schedule to issue interim injunction, but such interim injunction can only be "for the purpose of and in relation to arbitration proceedings".
The arbitration proceedings in the present case were for determination of the mutual claims of the appellant and the respondent arising out of the contract contained in the acceptance of tender dated 16th July, 1968.
The question whether any amounts were payable by the appellant to the respondent under other contracts was not the subject matter of the arbitration proceedings.
The Court obviously could not, therefore, make an interim order which, though ostensibly in form an order of interim injunction, in substance amounted to a direction to the appellant to pay the amounts due to the respondent under other contracts.
Such an interim order would clearly not be for the purpose of or in relation to the arbitration proceedings as required by section 41 (b).
" Having laid down the above dictum on the interpretation of section 41 of the this Court proceeded to analyse the impugned order of injunction in that case.
In its opinion the order of injunction did not expressly or by necessary implication carry any direction to the Union of India to pay the amounts due to the respondent under other contracts.
It is not only in form but also in substance a negative injunction.
It has no positive content.
What it does is merely to injunct the appellant from recovering suo motu the damages claimed by it from out of the pending bills of the 614 respondent.
It does not direct that the appellant shall pay such amounts to the respondent.
The appellant Union of India can still refuse to pay such amounts if it thinks it has a valid defence and if the appellant does so, the only remedy to the respondent would be to take measures in an appropriate forum for recovery of such amounts, where it would be decided whether the appellant is liable to pay such amounts to the respondent or not.
No breach of the order of interim injunction as such would be involved in nonpayment of such amounts by the respondent to the appellant.
The only thing which the appellant is interdicted from doing is to make recovery of its claim for damages by appropriating such amounts in satisfaction of the claim.
That is clearly within the power of the Court under section 41 (b) because the claim for damages forms the subject matter of the arbitration proceedings and.
the Court can always say that until such claim is adjudicated upon, the appellant shall be restrained from recovering it by appropriating other amounts due to the respondent.
The order of interim injunction made by the learned Judge cannot, therefore, be said to be outside the scope of his power under section 41 (b) read with the Second Schedule.
Following this judgment of the Supreme Court the Delhi High Court started modulating its injunctions accordingly and refused to include the word "withholding" in the order of injunction on the ground that the order in those terms really Would mean an order to make the payment which was specifically forbidden in terms of the above judgment of this Court.
As some doubt was raised in the Delhi High Court as to the exact scope of the ratio of the Union of India vs Raman Iron Foundry (supra) the matter was referred to a full Bench apparently to reconsider the earlier Division Bench judgments in Marwar Tent Factory vs Union of India(1) and Air Foam Industries vs Union & India.(2) The full Bench Mohan Meakin Breweries vs Union of India(3) took the view that though an injunction could be granted in those matters restraining the Union of India from adjusting of recovering any damages claimed by it from other pending bills of the contractor no order of injunction restraining the Union of India from withholding the payments due to the contractor under other pending bills could be issued.
615 Following the Full Bench decision the Division Bench in the present case held that the Court in arbitration proceedings was not competent to issue an injunction restraining the Union of India from withholding the amount due to the appellant contractor under other pending bills.
The only remedy of the appellant is to proceed outside the arbitration proceedings for the payments due under the pending bills, from the respondent.
The Court can, however, restrain the Union of India from recovering or appropriating the amount due to the appellant contractor under pending bills towards the damages claimed by the Union, unless it has been adjudicated upon or admitted by the other side.
The first question that falls for consideration in this appeal is about the exact scope and ambit of section 41 of the It will be appropriate at this stage to read section 41 in order to appreciate the contention raised on behalf of the appellant: "41.
Procedure and powers of Court: Subject to the provisions of this Act and of rules made thereunder (a) the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court, and to all appeals, under this Act, and (b) the Court shall have, for the purpose of, and in relation to, arbitration proceeding, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court: provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters.
" In view of cl.
(b) of section 41 the Court has been given power of passing orders in respect of any of the matters set out in second Schedule for the purpose of and in relation to any proceedings before the Court.
The Second Schedule of the inter alia includes `interim injunction ' and the 'appointment of receiver '.
But the Court has got the power to pass an order of injunction only 'for the purpose of and in relation to arbitration proceedings ' before the Court.
616 The proceedings before the Court in the instant case was an application under section 33 of the .
Section 33 of the in so far as material for the case, provides: "33.
Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits.
" The appellant in the instant case took the stand that there was no concluded contract between the parties including arbitration.
Therefore, the order of injunction passed in the instant case could not be for the purpose of and in relation to arbitration proceedings.
Faced with this difficulty Shri section N. Kacker, learned counsel for the appellant, fell back upon cl.
(a) of section 41 to contend that cl.
(a) makes the Code of Civil Procedure applicable to all proceedings before the Court and to all appeals under the Act and, therefore, the appellant was entitled to invoke order 39 of the Code to get an injunction order even if the conditions of cl.
(b) of s 41 were not satisfied.
We are afraid this contention cannot be accepted.
Clause (a) of section 41 makes only the procedural rules of the Code of Civil Procedure applicable to the proceedings in Court under the .
This clause does not authoritse the Court to pass an order of injunction.
The power is conferred by cl.
(b) of section 41.
The source of power, therefore, cannot be traced to cl.
If the contention of Shri Kacker is accepted, the appeals would lie under sections 96, 100 or 104 of the I.P.C. but the itself provides for appeal under section 39.
Besides, if cl.(a) of s.41 gave wide powers to pass an order of injunction, cl.
(b) of s.41 would become otiose.
The learned counsel for the appellant, however, contends that the arbitration proceedings relate to the claim for damages by the Union of India.
Any act of the Union of India which purports to enforce the said claim for damages, before it has been duly adjudicated upon in arbitration proceedings is an act which relates to such arbitration proceedings.
On the own case of the appellant that there was no concluded contract between the parties containing an arbitration clause it will 617 be difficult to say that the application for injunction moved by the appellant was for the purpose of and in relation to arbitration proceedings.
This apart, the amount due under the pending bills to the appellant was not the subject matter of the present proceedings and, therefore, the injunction order restraining the respondents from withholding the amount due to the appellant under the pending bills in respect of other contracts could not be said to be for the purpose of and in relation lo the present arbitration proceedings.
In this view of the matter it was not open to the Court to pass the interim injunction restraining the respondents from withholding the amount due to the appellant under pending bills in respect of other contracts.
The learned counsel Shri Kacker, however, strongly relied on the following observations of the Court in Union of India vs Raman Iron Foundry (supra): "But here the order of interim injunction made by the learned Judge does not, expressly or by necessary implication carry any direction to the appellant to pay the amounts due to the respondent under other contracts.
It is not only in form but also in substance a negative in Junction.
It has no positive content.
What it does is merely to injunct the appellant from recovering, suo moto, the damages claimed by it from out of other amounts due to the respondent.
It does not direct that the appellant shall pay such amounts to the respondents.
The appellant can still refuse to pay such amounts if it thinks it has a valid defence and if the appellant does so, the only remedy open to the respondent would be to take measures in an appropriate forum for recovery of such amounts where it would be decided whether the appellant is liable to pay such amounts to the respondent or not.
No breach of the order of interim injunction as such would be involved in non payment of such amounts by the appellant to the respondent.
The only thing which the appellant is interdicted from doing is to make recovery of its claim for damages by appropriating such amounts in satisfaction of the claim.
That is clearly within the power of the Court under section 41 (b) because the claim for damages forms the subject matter of the arbitration proceedings and the Court can always say that until such claim is adjudicated upon, the appellant 618 shall be restrained from recovering it by appropriating other amounts due to the respondent.
The order of interim injunction made by the learned judge cannot, therefore, be said to be outside the scope of his power under section 41 (b) read with the Second Schedule".
With profound respect we find that the aforesaid observation is incongrous with the proposition of law laid down by this Court just before this observation.
We find it difficult to agree with the observation of the Court that the impugned order in form and substance being the negative the respondent could refuse to pay such amounts if it thinks it has a valid defence, and if it chooses to do so there would be no breach of the injunction order.
It is true that the order of injunction in that case was in negative form.
But if an order injuncted a party from withholding the amount due to the other side under pending bills in other contracts, the order necessarily means that the amount must be paid.
If the amount ii withheld there will be a defiance of the injunction order and that party could be hauled up for infringing the injunction order.
It will be a contradiction in terms to say that a party is injuncted from withholding the amount and yet it can withhold the amount as of right.
In any case if the injunction order is one which a party was not bound to comply with, the Court would be loath and reluctant to pass such an ineffective injunction order.
The court never passes an order for the fun of passing it.
It is passed only for the purpose of being carried out.
Once this Court came to the conclusion that the Court has power under section 41 (b) read with Second Schedule to issue interim injunction but such interim injunction can only be for the purpose of and in relation to arbitration proceedings and further that the question whether any amounts were payable by the appellant to the respondent under other contracts, was not the subject matter of the arbitration proceedings and, therefore, the Court obviously could not make any interim order which though ostensibly in form an order of interim injunction, in substance amount to a direction to the appellant to pay the amounts due to the respondent under other contracts, and such an order would clearly be not for the purpose of and in relation to the arbitration proceedings; the subsequent observation of the Court that the order of injunction being negative in form and substance, there was no direction to the respondent to pay the amount due to the appellant under pending bills of other contracts, is manifestly inconsistent with the proposition of law laid down by this Court in the same case.
619 This leads us to the question of interpretation of cl. 18 of tho standard contract.
Clause 18 has been quoted in extenso in the earlier part of the judgment.
The argument by Shri K. G. Bhagat, Addl.
Solicitor General on behalf of the Union of India is that what is required for attracting the applicability of cl. 18 is a mere claim for payment of a sum of money arising out of or under the contract against the contractor and it is not necessary that a sum of money must be actually due and payable from the contractor to the purchaser.
According to him, if the purchaser has a claim for payment of a sum of money against the contractor, he would be entitled to exercise the right given under cl. 18, even though such a claim may not be for a sum due and payable but may be for damages and it may be disputed by the contractor and may not have been adjudicated upon in a Court of law or by arbitration.
Shri Bharat further submits that if the claim of the purchaser is not well founded and the appropriation made by the Union of India is unjustified, the contractor can always institute a suit or start arbitration proceedings for recovering the sums due to him which have been wrongly appropriated by the purchaser and in such suit or arbitration proceedings, the court or the arbitrator, as the case may be, would examine the validity of the claim against which appropriation has been made by the purchaser and if the claim is found to be unsustainable, set at naught the appropriation and pass a decree or award for the sums due to the contractor.
But the court cannot and should not restrain the Union of India from exercising its right of appropriation merely because the claim against which appropriation is sought to be made by the purchaser is disputed by the contractor and is pending adjudication before a court of law or arbitrator.
Shri Kacker on the other hand contends that though the words used in the opening part of cl. 18 are "any claim for the payment of a sum of money", which are general words of apparently wide amplitude sufficient to cover even a claim for damages arising out of the contract, a proper construction of the clause read as a whole clearly suggests that these words are intended to refer only to a claim for a sum due and payable and do not take in a claim for damages which is disputed by the contractor.
It is only when a claim for damages is adjudicated upon by a civil court or an arbitrator and the breach of the contract is established and the amount of damages ascertained and decreed that a debt due and payable comes into 620 existence; till then it is nothing more than a mere right to sue for damages, and it does not fall within the words of cl. 18.
Moreover, cl. 18 merely provides a mode of recovery and it can have no application where a claim, even though it be for a sum due and payable, is disputed by the contractor and has to be established in a court of law or by arbitration.
Clause 18 applies only where a claim is either admitted, or in case of dispute, substantiated by resort to the judicial process.
Therefore, when a purchaser has a claim for damages which is disputed by the contractor, the purchaser is not entitled under cl. 18 to recover the amount of its claim for damages by appropriating other sums due to the contractor until the claim for damages is adjudicated upon and culminates in a decree.
The respondent had consequently no right under cl. 18 to appropriate sums due to the appellant under other contracts in satisfaction of its claim for damages against the appellant, when the claim for damages was pending adjudication This Court in Union vs Raman Iron Foundry (supra) while construing cl.
18 of the standard contract observed: "It is true that the words "any claim for the payment of a sum of money" occurring in the opening part of cl. 18 are words of great amplitude, wide enough to cover even a claim for damages, but it is a well settled rule of interpretation applicable alike to instruments as to statutes that the meaning of ordinary words is to be found not so much in strict etymological propriety of language nor even in popular use as in the subject or occasion on which they are used and the object which is intended to be attained.
The context and collocation of a particular expression may show that it was not intended to be used in the sense which it ordinarily bears.
Language is at best an imperfect medium of expression and a variety of meanings may often lie in a word or expression.
The exact colour and shape of the meaning of any word or expression should not be ascertained by reading it in isolation, but it should be read structurally and in its context, for its meaning may vary with its contextual setting.
We must, therefore, read the words 'any claim for the payment of a sum of money ' occurring in the opening part of cl. 18 not in isolation but in the context of the whole clause, for the intention Of the parties is to be gathered not from one part of the 621 clause or the other but from the clause taken as a whole.
It is in the light of this principle of interpretation that we must determine whether the words 'any claim for the payment of a sum of money ' refer only to a claim for a sum due and payable which is admitted or in case of disputes, established in court of a law or by arbitration or they also include a claim for damages which is disputed by the contractor.
" The headings prefixed to a section or a group of sections in some modern statutes are regarded as preambles to those sections.
They cannot control the plain words of the statutes but they may explain ambiguous words.
The view is now well settled that the headings or titles prefixed to a section or a group of sections can be referred to in determining the meaning of doubtful expressions.
It is true that the court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words.
The law is clear that those headings cannot be used to give a different effect to clear words in the section where there cannot be any doubt as to the ordinary meaning of the words.
The golden rule is that when the words of a statute are clear, plain and unambiguous, that is, they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequences.
The duty of a Judge is to expound and not to legislate, is a fundamental rule.
If we apply the same principle to the interpretation of cl. 18 of the standard form of contract, it would be clear that the clause unequivocally contemplates a claim for the payment and it is open to the Union of India to appropriate any amount due to the contractor under other pending bills.
It does not contemplate the amount due and, therefore, the heading of this clause which talks of only 'Recovery of sum due ' will not control cl. 18.
The clause in our opinion gives wide powers to the Union of India to recover the amount claimed by appropriating any sum then due or which at any time thereafter may become due to the contractor under other contracts.
Clause 18 of the standard form of contract earlier was slightly differently worded and it read 'whenever under this contract any sum of money is recoverable from and payable by the contractor '.
But this formula was deliberately and advisedly altered when the present standard form was introduced and instead the words 'whenever any claim for payment of a sum of money arises ' were substituted and this change in phraseology indicated that in order 622 to attract the applicability of the present cl. 18, it was not necessary that there should be a sum of money due and payable by the contractor to the purchaser, but it was enough if there was a mere claim on the part of the purchaser for payment of a sum of money 't by the contractor irrespective of the fact whether such sum of money was presently due and payable or not.
This Court, however, did not attach importance to this aspect of the matter by observing: "We do not think it is legitimate to construe cl. 18 of the contract between the parties by reference to a corresponding clause which prevailed in an earlier standard form of contract.
This is not a statute enacted by the legislature where it can be said that if the legislature has departed from the language used by it in an earlier enactment, it would be a fair presumption to make that the alteration in the language was deliberate and it was intended to convey a different meaning.
It is a clause in a contract which we are construing and there any reference to a similar or dissimilar clause in another contract would be irrelevant.
The Court itself while interpreting cl.
18 of the contract has observed: "It is true that the words "any claim for the payment of a sum of money" occurring in the opening part of cl. 18 are words of great amplitude, wide enough to cover even a claim for damages, but it is well settled rule of interpretation applicable alike to instruments as to statutes . .".
But while dealing with another aspect of cl. 18 observed to the contrary that it should not be construed as a statute.
It may, however, be pointed out that even after the change in the language of cl. 18 of the standard agreement the Union of India cannot be injuncted from withholding the amount under other bills of the contractor.
But it can certainly be injuncted from recovering or appropriating it to the damages claimed.
Shri D. C. Singhania appearing along with Shri Kackar substantially reiterated the same argument in his written note.
We are clearly of the view that an injunction order restraining respondents from withholding the amount due under other pending 623 bills to the contractor virtually amounts to a direction to pay the amount to the contractor appellant.
Such an order was clearly beyond the purview of cl.
(b) of section 41 of the .
The Union of India has no objection to the grant of an injunction restraining it from recovering or appropriating the amount Lying with it in respect of other claims of the contractor towards its claim for damages.
But certainly cl. 18 of the standard contract confers ample power upon the Union of India to withhold the amount and no injunction order could be passed restraining the Union of India from withholding the amount.
We find no error in the impugned order passed by the Allahabad or the Delhi High Courts in the two cases.
The appeals, therefore, must fail and they are accordingly dismissed.
In the circumstances of the case, however, we direct that the parties should bear their own costs.
H.L.C. Appeals dismissed.

summary:
The DGS&D, representing the Government of India, had entered into a contract with the appellant firm for supply of some timber.
Clause 18 of the standard form of contract, under the head "Recovery of sums due", provided inter alia that whenever any claim for payment of a sum of money arose out of or under the contract against.
the contractor, the purchaser shall be entitled to recover such sum by appropriating any sum then due or which at any time thereafter may become due to the contractor under any other contract with the purchaser.
Clause 24 thereof provided for arbitration in the event of any dispute arising between the parties.
The appellant failed to supply the timber.
The DGS&D cancelled the contract, made risk purchases at extra cost and issued notice calling upon the appellant to pay the extra cost incurred and threatening to withhold the amount from the payments due under the pending bills of other contracts.
The appellant moved a petition under section 33 of the alleging that there was no concluded contract in existence between the parties, containing any arbitration clause and praying for an injunction restraining the Union of India from appropriating, withholding or recovering the amount claimed from its other bills.
The High Court held that under section 41 of the Act it could only grant an injunction restraining the Union of India from appropriating or recovering the amount of damages claimed from the other pending bills of the appellant, and rejected the prayer for grant of injunction restraining the Union of India from withholding payments of the other pending bills.
Dismissing the appeal, ^ HELD: 1.
Clause 18 of the standard form of contract confers ample power upon the Union of India to withhold the amount and no injunction 608 order could be passed restraining the Union of India from withholding the amount [623 B] (i) The golden rule of construction is that when the words of a statute are clear, plain and unambiguous, that is, they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of the consequences. 'The duty of a judge is to expound and not to legislate a is fundamental rule.
If this principle is applied to the interpretation of cl. 18 of the standard form of contract it would be clear that the clause unequivocally contemplates a claim for payment.
It does not contemplate the amount due and, therefore, the heading of this clause which talks of only 'Recovery of sums due ' will not control cl. 18.
Headings cannot be used to give a different effect to clear words in the section where there cannot be any doubt as to the ordinary meaning of the words.
The clause gives wide powers to the Union of India to recover the amount claimed by appropriating any sum then due or which at any time thereafter may become due to the contractor under other contracts.
[620 A G] (ii) Clause 18 was slightly differently worded earlier when it read 'whenever under this contract any sum of money is recoverable from and payable by the contractor '.
But this formula was deliberately and advisedly altered when the present standard form was introduced by substituting the words 'whenever any claim for payment of a sum of money arises ' and this change in phraseology indicated that in order to attract the applicability of the present cl. 18, it was not necessary that there should be a sum of money due and payable by the contractor to the purchaser, but it was enough if there was a mere claim on the part of the purchaser for payment of a sum of money by the contractor irrespective of the fact whether such sum of money was presently due and payable or not.
Even after the change in the language of cl 18 the Union of India cannot be injuncted from withholding the amount under other bills of the contractor.
But it can certainly be injuncted from recovering or appropriating it to the damages claimed.
[620 H 621A, G] Union of India vs Raman Iron Foundry, [1974] 3 S.C.R. 556 overruled.
An injunction order restraining the Union of India from withholding the amount due to the contractor under other pending bills virtually amounts to a direction to pay the amount to the contractor appellant.
Such an order was beyond the purview of cl.
(b) of section 41 of the .
[621 H 622 A] (i) Clause(b) of section 41 confers power on the court to pass orders in respect of any of the matters set out in the Second Schedule which inter alia includes `interim junction '.
But this power to pass an order of injunction can only be excercised 'for the purpose of and in relation to arbitration proceedings ' before the Court.
[61 5H] In the instant case the proceedings before the Court were pursuant to an application made under section 33 of the Act in which the appellant had taken the stand that there was no concluded contract between the parties containing an arbitration clause.
Therefore, it is difficult to say that the 609 application for injunction moved by the appellant was for the purpose of and in relation to arbitration proceedings.
That apart, the amount due to the appellant under the pending bills was not the subject matter of the present proceedings and, therefore, the injunction order restraining the respondent from withholding the amount due to the appellant under the pending bills in respect of other contracts could not be said to be for the purpose of and in relation to the present arbitration proceedings.
[616 A, C, 617 A B] Union of India vs Raman Iron Foundry [1974] 3 S.C.R. 556, referred to.
Mohan Meaken Breweries vs Union of India, A.I.R. 1975 Delhi 248, approved.
(ii) The contention that cl.
(a) of section 41 makes the Code of Civil Procedure applicable to all proceedings before the Court and to all appeals under the Act and, therefore, the appellant was entitled lo invoke o. 39 of the Code to get an injunction order even if the conditions of cl.
(b) of section 41 were not satisfied cannot be accepted.
Clause (a) of section 41 makes only the procedural rules of the Code applicable to the proceedings in court under the .
This clause does not authorise the court to pass an order of injunction.
If the above contention is accepted, appeals would lie under sections 96, 100 or 104 of the Code.
But the Act itself provides for appeal under section 39.
Besides, if cl, (a) of section 41 gave wide powers to pass all order of injunction, cl.
(b) of section 41 would become otiose.
[616 D F] (iii) If an order injuncted a party from withholding the amount due to the other side under pending bills in other contracts, the order necessarily means that the amount must be paid.
It will be a contradiction in terms to say that a party is injuncted from withholding the amount and yet it can withhold the amount as of right.
In any case if the injunction order is one which a party was not bound to comply with, the Court would he loath and reluctant to pass such an ineffective injunction order.
In injunction order is passed only for the purpose of being carried out.
[618 D E] Union of India vs Raman lron Foundry, [1974] 3 S.C.R. 556; observations to the contrary held inconsistent with the law laid down in the case.


judgement:
Civil Appeals Nos.
*1312 of 1976, 519, 1146, 537 and 2639 of 1979.
773 and 2032 of 1980.
Appeals by *Certificate and Special leave Petitions from the Judgment and order dated the 8.10.74, 9.11.78, 22.12.78, and 5th March.
1980 of the Allahabad High Court in Civil Writ Petitions Nos.
3039/74, 89/76, 760/75, 759/75, 442/76, 2630/77 and 547/75.
P. R. Mridul, G. L Sanghi, Dr. Praveen Kumar, Praveen Kumar, and H. K Puri for the appearing Appellants.
section C. Manchanda, Sobha Dikshit, Pradeep Misra and Sudhir Kulshreshta for the appearing Respondents 668 The Judgment of the Court was delivered by THAKKAR, J.
The main controversy in this group of appeals centres around the question whether Electricity Duty on the consumption of electrical energy in Uttar Pradesh is payable by a person who has his own source of generation and also purchases electrical energy from a licensee, or the Board, or the State Government, or the Central Government.
The contention has been raised in the context of Section 3(1) and 4(1) of the U. P. Electricity (Duty) Act, 1852.
The view is canvassed on behalf of the consumers of electrical energy that while under Section 3(1) (c) read with Section 4(1) (c) of the Act Electricity Duty is indubitably leviable and payable on electrical energy consumed by a person from his own source of generation, such duty is not payable by him in case he consumes energy from his own source of generation and also purchases energy from a licensee, the Board, the State Government or the Central Government.
This question initially came up before a Division Bench of the Allahabad High Court in Sherwani Sugar Syndicate Pvt. Ltd. vs State of U.P. (C. M. W. P. No. 3039 of 1974).
The Division Bench by its judgment dated October 8, 1974 upheld the contention that in as much as the petitioner company had its own source of generation of energy and was also purchasing energy from another source indicated in Section 3 (1) (a) and 3 (1) (b), the petitioner company was not liable for payment of duty on the energy generated from its own source of supply.
The State of Uttar Pradesh has called into question the legality and validity of this decision by way of an appeal by certificate of fitness granted by the High Court (C. A. No. 1312 of 1977).
Meanwhile M/s. Deoria Sugar Mills Ltd. also approached the High Court of Allahabad by way of C.M.W.P. No. 9990 of 1975 on an identical plea.
The matter came up before another Division of the Allahabad High Court.
This Division Bench was of the opinion that the decision in Sherwani Syndicate case (supra) required reconsideration.
The matter was therefore referred to a Full Bench.
The Full Bench was of the opinion that the view taken earlier in Sherwani 's Case was not correct and dismissed the Writ Petition filed by M/s Deoria Sugar Mills, taking the view that a user of electricity was liable to pay electricity duty on the consumption of energy from his own source of supply regardless of whether or not he also purchased electricity from some other source indicated in Section 3 (1) (a) and (b).
In view of this decision of the Full Bench, petitions instituted by six other companies raising the identical question were dismissed by the High Court of Allahabad.
These companies 669 have approached this Court by way of six separate appeals by special leave granted by this Court.
Sections 3 (1) and Section 4(1) of the Act in so far as material read thus; "3.
Levy of Electricity Duty (I) Subject to tho provisions herein after contained, there shall be levied for and paid to the State Government on the energy: (a) Sold to a consumer by a licensee, the Board, the State Government or the Central Government, or (b) Consumed by a licensee or the Board in or upon premises used for commercial or residential purposes, or in or upon any other premises except in the construction, maintenance or operation of his or its works; or (c) Consumed by any other person from his own source of generation; a duty (hereinafter) referred to as 'electricity Duty ') x x x x x x x x x x 4.
Payment of electricity duty and interest thereupon: (1) The electricity duty shall be paid, in such manner and within such period as may be prescribed, to the State Government.
(a) Where the energy is supplied or consumed by a licensee, by the licensee: (b) Where the energy is supplied by the State Government or the Central Government or is supplied or consumed by the Board, by the appointed authority; and (c) Where the energy is consumed by any other person from his own source of generation by the person generating such energy.
" 670 The original writ Petitioners who canvass the view that electricity duty is not leviable or payable by a person consuming energy from his own source of generation under section 3 (1) (c) read with Section 4 (l) (c) of the Act lay great stress on the expression 'another person ' occuring in Section 3 (l) (c) and Section 4 (1) (c) of the Act.
It is contended that in view of the user of this expression only those consumers who wholly fall outside the orbit of Sections 3 (1) (a) or 3 (l) (b) are eligible to electricity duty under section 3(1) (c).
In case a consumer fails 'both ' under Sections 3 (1) (a) and 3 (1) (c) or sections 3 (1) (b) and 3 (1) (c) (it is so argued such a person would not be exigible to electricity duty.
The same argument is urged protanto in the context of clauses (a), (b) and (c) of Section 4(1).
In our opinion this submission is altogether untenable and has been rightly repelled by the Pull Bench of the Allahabad High Court in its well considered judgment.
On a plain reading of Section 3 (1) (c) it is evident that duty has been levied on the energy consumed by a person from his own source of generation without anything more.
There is no rider or qualification engrafted in Section 3 (1) (c) or Section 4 (1) (c?.
The fact that the user of electricity from his own source of generation purchases electricity from some other source as well, is an altogether irrelevant factor from the stand point of the liability imposed by the said provisions.
Be it realized that duty is levied on the consumption of energy.
The taxing event is the consumption of energy The source from which the electricity is acquired is altogether irrelevant.
A person having his own source of energy who also purchases energy from another source indicated in Section 3 (1) (a) will be covered by 3 (1) (a) to the extent he purchases electricity from such a source, and will be equally covered by Section 3 (1) (c), insofar as he consumes energy from his own source of generation.
He will be covered by both the provisions read conjointly.
The same reasoning applies in the context of clauses (a) (b) and (c) of Section 4 (1).
There is no rational basis for exonerating a person from payment of duty merely because he has his own source of generation and he also purchases electricity from some other source.
In fact it will be irrational to do so and it would give rise to an anachronism.
Why make him pay 'only if he generates his own energy and why exempt him altogether merely because he 'also ' purchases from some other source ? Duty is levied as a measure of taxation in order to raise additional revenue as is made abundantly clear by the prefactory note and the extract from the statement of objects and reasons published in U. P. Gazette Extraordinary dated September 1, 1952 which reads as under: 671 "The minimum programme of development which this State must carry out within the next three or four years for the attainment of the objective of a welfare State is set out in the Five Year Plan drawn up by the Planning Commission.
This plan provides for an expenditure of 13.58 crores of rupees on power development projects.
Such a huge expenditure cannot be met from our present resources.
It is, however essential for the welfare of the people that the expenditure should be incurred and that noting should be allowed to stand in the way of the progress of the plan.
Additional resources have therefore to be found, the bulk of which can be raised only by means of fresh taxation.
A tax on the consumption of electrical energy will impose a negligible burden on the consumer and is a fruitful source of additional revenue.
The bill has been so prepared as to ensure that the tax payable by a person will be related to the quantity of electricity consumed by him.
The bill is being introduced with the above object.
Vide Statement of Objects and Reasons published in U. P. Gazette.
Extra.
September 1, 1952.
" How would this object be promoted or served by adopting such an irrational course ? The taxing event being the consumption of energy, the source from which the electricity is acquired would become altogether irrelevant.
Section 3 (1) as also Section 4 (1) has to be read as a whole and has to be interpreted in a harmonious and meaningful manner.
To do otherwise would be to defeat the legislative intent which is abundantly clear, whilst at the same time exposing the provision to the charge of being irrational and arbitrary, by placing such an unwarranted construction thereon.
The Full Bench of the Allahabad High Court, was, therefore, perfectly justified in taking the view that duty was chargeable in respect of energy consumed by a person from his own source of generation regardless of the fact that he 'also ' purchased electricity from some other source indicated in Section 3 (1) (a) and Section 4 (1) (a).
The appeal preferred by the State, being Appeal No. 1312/77 will therefore have to be allowed and the appeals preferred by the consumers of electricity challenging the correctness of the decision rendered by the Full Bench must therefore be dismissed.
672 The next question agitated in five out of the seven appeals comprised in the group (it does not arise in C.A. 1312/77 and C.A. 1146/79) arises thus: The State of U.P. issued a notification dated March 17, 1973 whereby in exercise of powers under sub section (4) of Section 3 of the Act a person consuming energy from his own source of generation installed 'after ' January 2, 1973 was exempted from payment of electricity duty.
The appellants in the appeals before us are persons who have their own source of generation of electricity.
The generating machinery was however installed and commissioned by them 'before ' January 2, 1973.
It is their contention that exemption could not have been lawfully granted to a person installing his own source of generation 'after ' January 2, 1973 unless exemption was also granted to the persons consuming electricity from their own source of generation installed 'prior ' to January 2, 1973.
In other words the argument is that exemption must be granted to all persons having their own source of electricity regardless of the date on which the source of generation is installed, in order to be able to successfully face the challenge from the platform of Article 14 of the Constitution of India.
Exemption, (it is argued in effect), must be granted to all or to none irrespective of the date of installation of the equipment for generation of electricity to save the provision from the peril of being held as unconstitutional by reason of its being discriminatory and violative of Article 14 of the Constitution.
This argument has been rightly negatived by the High Court for the very good reason that the Notification ex facie made it abundantly clear that exemption was being granted "having regard to the need to promote industrial production generally and to the prevailing acute power shortage in the State.
" It is evident that in view of the felt need for augmenting the sources of supply of electrical energy an incentive needed to be provided by way of granting exemption to those who installed their own source of generation of energy.
As acute shortage of power was being experienced there was a need to encourage the consumers to acquire their own source of energy with a view to reduce or lessen the burden on the existing sources of electricity generation.
Obviously this purpose can be achieved only by granting the exemption prospectively to those consumers who install their own source of generation of energy pursuant to the concession being granted under the provision for exemption.
Those who already had their own source of generation of energy need no such encouragement in respect of the source of generation already installed.
If they wanted to further augment their own source of generation of energy they would also be entitled to 673 exemption in respect of the 'additional ' source of generation installed 'after ' the date specified in the notification.
The classification is, therefore, rational, purposeful, as also meaningful, and it is calculated to effectively serve the real purpose of granting exemption.
Article 14 cannot be invoked in a situation like this to successfully assail that part of the notification where by the date of installation has been made the precondition for qualifying for exemption.
State of Uttar Pradesh vs Jageshwar(1) on which reliance is placed cannot buttress the view canvassed by the writ petitioners having regard to the fact that exemption was granted with a view to encouraging consumers of electricity to become self sufficient hence forth and with the end in view to lessen the burden on the other source of generation prospectively.
As against this those who had already acquired their own source for generating electricity were in need of no retroactive encouragement by way of concession or exemption for doing what they had already done.
There would have been no augmentation of the existing resources by extending the exemption to them.
Under the circumstances we are of the opinion that the High Court was fully justified in repelling the plea urged by the writ petitioners in this behalf.
In the result the appeal preferred by the State of Uttar Pradesh (C.A. 1312 of 1977) is allowed, the judgement and order of the High Court are set aside, and the writ petition giving rise to the said appeal is dismissed with costs throughout.
The rest of the appeals are dismissed with costs.
All interim orders will stand vacated.
H.S.K Civil Appeal No. 1312/72 allowed and all other Appeals dismissed.

dataset_name: IN-Abs

summary:
The appellants who had their own source of generation of electrical energy (generating machinery having been installed and commissioned before 2.1.1973) and were also purchasing electrical energy from another source challenged the correctness of the decision of a Full Bench of the High Court reversing the decision of a Division Bench and holding that a user of electricity was liable to pay electricity duty on consumption of energy from his own source of supply regardless of whether or not he also purchased electricity from some other source indicated in sec.
3(1) (a) and (b).
The appellant contended that in view of the user of the expression 'another person ' in sec.
3(1) (c) and sec.
4(1) (c) only those consumers who wholly fell outside the orbit of sec.
3(1) (a) and (b) were exigible to electricity duty under sec.
3(1) (c).
The appellant submitted that under Notification dated March 17, 1973 exemption must be granted to all persons having their own source of electricity regardless of the date on which the source generation is installed to save it from challenge under article 14 of the Constitution of India.
In Civil Appeal 1312 the State of U.P. challenged the correctness of the decision of the Division Bench.
Allowing the Appeal No. 1312 and dismissing other appeals, ^ HELD: The duty was chargeable in respect of energy consumed by a person from his own source of generation regardless of the fact that he 'also ' purchased electricity from other source indicated in sec.
3(1) (a) and sec.
4(1) (a).
[671 G] On a plain reading of sec.
3(1) (c) it is evident that duty has been levied on the energy consumed by a person from his own source of generation without anything more.
The fact that the user of electricity from his own source of generation purchases electricity from some other source as well, is an altogether irrelevant factor from the stand point of liability imposed by the said provisions.
Be it realized that duty is levied on the consumption of energy The 667 taxing event being the consumption of energy, the source from which the electricity is acquired would become altogether irrelevant.
3(1) as also Sec.
4(1) has to be read as a whole and has to be interpreted in a harmonious and meaningful manner.
A person having his own source of energy who also purchases energy from another source indicated in sec.
3(1 j (a) will be covered by 3(1) (a) to the extent he purchases electricity from such a source, and will be equally covered by sec.
3(1) (c), in so far as he consumes energy from his own source of generation.
He will be covered by both the provisions read conjointly.
The same reasoning applies in the context of clauses (a) (b) and (c) of sec.
There is no rational basis for exonerating a person from payment of duty merely because he has his own source of generation and he also purchases electricity from some other source.
In fact it will be irrational to do so and it would give rise to an anachronism.
Why make him pay 'only ' if he generates his own energy and why exempt him altogether merely because he 'also ' purchases from some other source ? [670 D H] As acute shortage of power was being experienced there was a need to encourage the consumers to acquire their own source of energy with a view to reduce or lessen the burden on the existing sources of electricity generation.
Obviously this purpose can be achieved only by granting the exemption prospectively to those consumers who install their own source of generation of energy pursuant to the concession being granted under the provision for exemption.
Those who already had their own source of generation of energy need no such encouragement in respect of the source of generation, already installed.
If they wanted to further augment their own source or generation of energy they would also be entitled to exemption in respect or the 'additional ' source of generation installed 'after ' the date specified in the notification.
The classification is, therefore, rational, purposeful, as also meaningful, and it is calculated to effectively serve the real purpose of granting exemption.
Article 14 cannot be invoked in a situation like this to successfully assail that part of the notification whereby the date of installation has been made the precondition for qualifying the exemption.
[672 G 673 B] State of Uttar Pradesh vs Jageshwar, ; referred to.


judgement:
N: Criminal Appeal No. 154 of 1974.
From the Judgment and order dated the 25th September, 1973 of the Allahabad High Court in Criminal Appeal No. 1 809 of 1969.
R.R Garg, V. J. Francis and Nikhil Chandra for the appellants.
Dalveer Bhandari.
H. M. Singh and Ranbir Singh Yadav for the respondent.
The following Judgment of the Court was delivered by: BALAKRISHNA ERADI J. It is an unfortunate and disturbing phenomenon that has recently arisen in many parts of our country that instances of bride killing are alarmingly on the increase.
If society should be ridden of this growing evil, it is imperative that whenever dastardly crimes of this nature are detected and the offence brought home to the accused, the courts must deal with the offender most ruthlessly and impose deterrent punishment.
The case before us is one of its kind.
While, in the vast majority of such cases, the harassment and killing of the bride is traceable to the abominable and pernicious practice of demanding and extracting dowry and the failure on the part of the bride 's parents to adequately satisfy the greedy demands of the husband 's people, the reason for the torture and murder of the innocent wife in the present case was that she was considered an "inauspicious" girl.
That was for the reason that she did not bear children for four or five years after the marriage and even though thereafter, she conceived twice and successively gave birth to two male babies, both those babies did not survive beyond a few weeks or days.
Having branded the young wife as inauspicious, the selfish animal nature in the husband and his parents came out in the form of their determination that the husband should remarry after doing away with the obstacle in the shape of his existing wife.
That led the husband and his mother to commit the dastardly murder Of the young wife in a most gruesome fashion .
603 Sileti Singh, his wife, Smt.
Gyani Devi, and his son, Virbhan Singh, were arraigned before the Sessions Judge, Etawah, charged with the murder of Smt.
Gyani, the wife of Virbhan Singh, in furtherance of the common intention of all of them, by intentionally causing death by beating the deceased and then hanging her with a rope.
The deceased was married to Virbhan Singh about 9 years prior to the time of the occurrence.
She did not give birth to any child for about five to six years after marriage.
According to the prosecution case, the husband of the deceased and his parents used to harass her and beat her on this account and they used to say that they would get the second marriage performed for Virbhan Singh.
In or about the seventh year after the marriage, the deceased gave birth to a male child but that child survived only for about 9 or 10 months.
There after, the ill treatment of the deceased at the hands of the husband and his parents is said to have commenced again.
A few months prior to the occurrence, the deceased gave birth to another male child but that baby too died within 6 or 7 days of its birth This precipitated matters and the deceased is said to have been branded as an "inauspicious" woman, who could no longer be retained in the family.
According to the prosecution, she used to make complaints of severe harassment by the accused to her sister, Shrimati Ram Kumari (P.W.1), who too was married to a person in the same village Nangla Incha.
On 14th August 1968 at about 5.00 p,m., Shrimati Ram Kumari had gone to the house of the deceased with an intent to meet her but she was told by the husband, Virbhan Singh and his mother that the deceased had gone with the father in law to obtain some medicine.
The next morning, P.W 1 heard a general rumour in the village that her sister had been killed.
There upon, she called her husband 's younger brother, Krishna Gopal (P.W.4) and again went to the house of the accused along with him.
She found Virbhan Singh and his mother, Smt.
Gyani Devi, in the house and she asked them to show her the dead body of the deceased.
At first they refused but on a hue and cry being raised by her, they showed her the dead body lying in a roon in a swollen condition, emitting a foul smell.
On 15th August 1968, at about 9.30 a.m. Sileti Singh lodged a report at the Police Station Jaswantnagar to the effect that the deceased had committed suicide by hanging herself with a rope.
Sub Inspector Netrapal Singh (P.W. 11) went to the place of occurrence and held an inquest on the dead body with the assistance t of panchas.
Most strangely, in spite of the body being in a fairly advanced state of decomposition, thereby clearly indicating that the death had taken place a long time prior to the report given by Sileti 604 Singh, which should have normally aroused serious suspicion in the mind of any reasonable person about the version of suicide given by him, the Sub Inspector and the panchas were inclined to record the cause of death as suicide by hanging and close the case without any further investigation.
However, Ram Kumari (P.W.1) and her brother in law, Krishn a Gopal (P.W.4), strongly protested and demanded that the body should be sent for post mortem and due to their persistence, the request was acceded to.
The post mortem examination was conducted by Dr. Lakhotia on 15 8 1968 at 5.30 p m.
In the opinion of the doctor, the death had taken place between one and a half to two days prior to the time of his examination, i.e. between 5.30 p.m.
On 13 8 1968 and 5.30 a.m.
On 14 8 1968.
The post mortem report disclosed that there were the following ante mortem injuries on the person of the deceased.
Ligature mark 8" x 1/2" on the neck in the upper part between larynx and chin, in front and on sides just below the chin.
On dissection the margins were found congested.
It was directed upwards obliquely following the lower jaw and was almost behind.
Its base was pale, hard and leathery.
Abrasion 1 1/2" x1/2" on the neck lower part left side.
Contusion covering whole of the upper eye lid of left eye.
Conjunctive was congested.
Contusion covering the whole of upper eye lid of right eye.
Conjunctive was congested.
Contusion 4" x 4" on the chest left side upper part below the clavicle.
Under the ligature mark greater curve of hyoid bone was broken on the right side.
There was congestion around the big vessels of the neck.
The lower ribs of the deceased from 8th to 10th on the left side were found broken.
The abdomen was distended and discoloration was present in the flanks.
Peritoneum was deeply congested.
The abdominal cavity was full of blood weighing about 1 1/2 Ibs.
There 605 was a big tear 6" long in the stomach.
The abdominal walls were congested.
There was a lacerated wound 3"x 1/2" on the front of left lobe of the liver.
Both kidneys were congested and decomposing.
Both sides of her heart were empty.
Larynx was congested deeply.
Both lungs were deeply congested and deeply decomposing.
The large vessels were congested in the neck on both sides.
In the opinion of the doctor, the death was due to shock and haemorrhage as a result of injury to liver and stomach as well as asphyxia due to hanging.
The doctor, on being examined as a witness, stated categorically that in view of the injuries mentioned in post mortem report, there was little possibility of the deceased hanging herself.
The sessions Judge found, on a careful and analytical consideration of the evidence, that the death of the deceased was caused as a result of the injuries inflicted on her by the accused, followed by asphyxiation resulting from the deceased having been hung by her neck by the accused.
He found all the accused guility of the offence of murder, convicted them u/s 302 I.P.C. and sentenced the three of P them to undergo imprisonment for life.
In the appeal filed by the three accused, the High Court confirmed the finding that the case was not one of suicide but one of calculated murder, the hanging by rope being part of the process of the deceased being put to death by her assailants.
The High Court, however, took the view that the presence of Sileti Singh at the time of the commission of offence was not established beyond doubt and hence it acquitted him giving him the benefit of doubt.
The conviction of Virbhan Singh and his mother, Smt.
Gyani Devi, uls 302 I.P.C. was confirmed by the High Court.
This appeal has been preferred by the afore mentioned two accused.
We find no merit at all in the appeal.
Since we are in complete agreement with the findings entered by the Sessions Judge and the High Court regarding the cause of the death of the deceased and the manner in which she was done to death, it is unnecessary for us to burden this judgment with a repetition of the details of the evidence.
The case no doubt turns purely on circumstantial evidence.
But the circumstances are so telling that the only conclusion reasonably possible is the one arrived at by the courts below that the deceased did not commit suicide by hanging herself but was done to death by being brutually assaulted and thereafter hung by the neck with 606 a rope.
The medical evidence clearly goes to prove that it would not have been possible for the deceased, who had sustained severe injuries of the type and nature described in the post mortem report in the stomach and liver, to hang herself.
The husband, Virbhan Singh and his mother, Smt.
Gyani Devi, were throughout present in the house and no outsider had come to the house at the relevant time.
According to the opinion of the doctors the latest point of time at which the death of the deceased could have taken place was 5.30 a.m. on 14 8 1968 but even on the evening of that day when P.W. 1, Shrimati Ram Kumari, sister of the deceased went to their house and enquired for the deceased, she was told by Virbhan Singh and his mother that the deceased had gone out with the father in law for getting some medicine.
On the next day (15th August 1968) rumours spread in the village that the deceased had been done to death and it was only when P.W.l accompanied by her brother in law, P.W 4 went to the house of the accused and insisted on being shown the body that she was finally allowed to see the dead body of her sister which, by then, was already in a state of decomposition.
Significantly, it is only subsequent thereto that Sileti Singh went to the Police Station and lodged the report stating that the deceased had commit ted suicide by hanging.
The conduct of the appellants is consistent only with their active involvement in the commission of the crime.
It has come out in the evidence that on the evening of the 14th August 1968 at about 7.30 or 8.00 p.m. Sileti Singh had made attempts to remove clandestinely the dead body from the locality for which purpose he had met Brahma Nand (P.W.3), a truck owner, and unsuccessfully tried to hire his truek to transport the dead body On a scrutiny of the evidence, we age fully satisfied that the conclusion recorded by the learned Sessions Judge and by the High Court, that the appellants are guilty of the murder of the deceased in a most brutal and heinous fashion, is perfectly correct and sound.
We may observe that the reasons stated by the High Court in acquitting Sileti Singh, by giving him the benefit of doubt, have not appealed to us as sound and convincing but since the State has not preferred an appeal, his acquittal will stand.
In the result, the conviction and sentence are confirmed in respect of Virbhan Singh and Smt.
Gyani Devi and this appeal is dismissed.
The appellants will forthwith surrender to their bail bonds and will be taken into the custody to serve out their sentence.
S.R, Appeal dismissed.

summary:
For the offence of murder of Smt.
Gyani, her husband Virbhan Singh his mother Smt.
Gyani Devi (both appellants before the Supreme Court) alongwith his father Sileti Singh were arraigned before life Sessions Judge, Etawah, section 302 read with Section 34 Indian Penal Code.
According to the prosecution the motive was the selfish animal nature in the husband and his parents which has come out in the form of their determination that the husband should remarry after doing away with the obstacle in the shape of his existing wife on the sole ground that she was inauspicious due to the fact that she did not bear children for four or five years after the marriage and that even though thereafter she conceived twice and successfully gave birth to two male babies, both those babies did not survive beyond a few weeks or days.
The further evidence of the prosecution were that the accused assaulted the deceased and then hung her with a rope to give the impression of suicide, did not inform anyone and kept the body in the room, that an attempt made by Sileti Singh to remove the body in a lorry failed, that when P.W.1, the sister of the deceased went along with P.W.4 her brother in law to see the deceased on the 14th of August, 1968, the husband and the mother told a lie that the deceased had gone out to get medicine, that again on the 15th August, 1968 after P.W,l 's repeated insistence, the dead body was shown to her in a decomposed condition, that Sileti Singh only thereafter lodged a report at the police station Jawaharnagar to the effect that the deceased committed suicide which version was accepted by the Police and the Panchas; that on the insistance of P.W.1, the dead body was sent for postmortem, that the postmortem revealed (a) five antemortem injuries including the breakage of the right side hyoid bone under the ligature mark, (b) death should have taken place between 5.30 P.M.
On August 13th, 1968 and 5.30 A.M: on August 14th, 1968, (c) death was due to shock and haemorrhage as a result of injury to liver aud stomach as well as asphyxia due to hanging and (d) inview of the antemortem injuries found, there was little possibility of the deceased hanging herself.
The Sessions Judge found, on a careful and analytical consideration of the evidence, all the accused guilty, convicted them under Section 302 I.P.C. and sentenced the three of them to life imprisonment.
In the appeal filed the 601 High Court confirmed the conviction and sentence of the present appellants and acquitted Sileti Singh, the father.
There was no appeal by the State against the acquittal.
Dismissing the appeal, the Court ^ HELD: 1: 1.
The conviction and senctence of the appellants are perfectly correct and sound, as they are guilt of the murder of the deceased in a brutal and heinous fashion.
The case no doubt turns purely on circumstantial evidence.
But the circumstances are so telling that the only conclusion reasonably possible is the one arrived at by the courts below that the deceased did not commit suicide by hanging hereself but was done to death by being brutally assaulted and thereafter hung by the neck with a rope.
The medical evidence clearly goes to prove that it would not have been possible for the deceased, who had sustained severe injuries of the type and nature described in the post mortem report in the stomach and liver, to hang herself.
The husband, Virbhan Singh and his mother, Smt.
Gyani Devi, were throughout present in the house and no outsider had come to the house at the relevant time.
According to the opinion of the doctor, the latest point of time at which the death of the deceased could have taken place was 5,30 a.m.
On 14.8.1968 but even on the evening of that day when P.W.1, Shrimati Ram Kumari, sister of the deceased went to their house and enquired for the deceased, she was told by Virbhan Singh and his mother that the deceased had gone out with the father in law for getting some medicine.
On the next day (15th August, 1968) rumours spread in the village that the deceased had been done to death and it was only when P.W. l accompanied by her brother in law, P.W. 4 went to the house of the accused and insisted on being shown the body that she was finally allowed to see the dead body of her sister which, by then, was already in a state of decomposition.
Significantly, it is only subsequent thereto that Sileti Singh went to the police Station and lodged the report stating that the deceased had committed suicide by hanging.
The conduct of the appellants is consistent only with their active involvement in the commission of the crime.
It has come out in the evidence that on the evening of the 14th August 1968 at about 7.30 or 8.00 p.m. Sileti Singh had made attempts to remove clandestinely the dead body from the locality for which purpose he had met Brahma Nand (P.W. 3), a truck owner, and unsuccessfully tried to hire his truck to transport the dead body.
[605 G H, 606 A E] Observations (i) If society should be ridden of this growing evil, it is imperative that whenever dastardly crimes of this nature are detected and the offence brought home to the accused, the courts must deal with the offender most ruthlessly and impose deterrent punishment.
[602 E] (ii) Most strangely, in spite of the body being in a fairly advanced state of decomposition, thereby clearly indicating that the death had taken place a long time prior to the report given by Sileti Singh, which should have normally aroused serious suspicion in the mind of any reasonable person about the 602 version of suicide given by him, the Sub Inspector and the panchas were inclined to record the cause of death as suicide by hanging and close the case without any further investigation.
[603 H 604 A] (iii) Though the reasons stated by the High Court in acquitting Sileti Singh by giving the benefit of doubt are not sound and convincing since the State has not preferred an appeal, his acquittal will stand.
[606 F G]


judgement:
CIVIL Appeal No. 2609 of 1983.
Appeal by Special leave from the Judgment and order dated the 1st July, 1982 of the Bombay High Court in Appeal No. 215 of 1981.
D. V. Patel, T. U. Mehta, H. J. Zaveri for the Appellants.
As the matter brooked no delay, after granting special leave to appeal.
we proceeded to hear the appeal on merits.
When hearing was over.
we pronounced the following order and stated that the reasons would follow.
The order reads as under: "The appeal is allowed and the order made by the learned Single Judge as well as the Division Bench of the Bombay High Court rejecting the Judge 's Summons taken out by the appellants is set aside and the Judge 's Summons is granted to the extent indicated herein.
The appellants shall deposit Rs. 1,50,000 by or be fore March 1, 1983 in this Court.
Respondent No. 2 Smt.
Sabita V. Adapa shall hand over vacant and peaceful possession of the property being a shop Nos.
8/9 on the ground floor of the building formerly known as 'Jagmohan Building No. 2 ' or as 'Ayaz Mansion ' and now styled as 'Ram Kutir ' situated at Station Road, Andheri, Bombay 400058 to the liquidator on or before February 28, 1983 who shall forthwith hand over possession on March 1, 1983 to the appellants, after taking a statement from the appellants that they have deposited the amount Rs. 1, 50, 000 in this Court as herein indicated.
On respondent No. 2 handing over vacant and peaceful possession of the afore mentioned shops to the liquidator by or before February 28, 1983, the liquidator shall forthwith refund to her the security deposit of Rs. 28,800 deposited by the second respondent with the liquidator.
Respondent No. 2 will be at liberty to remove all furniture and fixtures placed by her in the suit shop without Causing damage to the property.
The amount of Rs. 1, 50, 000 to be deposited by the appellants in this Court will with the consent of the appellants be disbursed according to the direction to be given by this Court to the needy and the deserving creditors of the Chit Centre Pvt. Ltd. already ordered to be wound up 660 by the High Court.
Neither the liquidator nor the creditors of Chit Centre Pvt. Ltd. have any right to claim this amount of Rs. 1,50,000 or any part thereof as it is an ex gratia payment made by the appellants for alleviating the misery if any of some of the hard hit creditors of Chit Centre Pvt. Ltd. The distribution of the aforesaid amount will be at the absolute discretion of this Court.
The appeal is allowed to the extent herein indicated with no order as to costs.
" These are the reasons.
On a winding up petition filed under the , a learned Company Judge of the Bombay High Court made an order on September 23, 1974 winding up Chit Centre Private Ltd. ( 'Company ' for short).
The Company had its office in shops bearing Nos. 8 and 9 on the ground floor of the building formerly known as 'Jagmohan Building No. 2 ' or as 'Ayaz Mansion ' now known as 'Ram Kutir '.
On the winding up order being made, the official Liquidator who was appointed as Liquidator of the Company while taking possession of the assets of the Company also took possession of the office premises of the Company.
It is in this manner that the Liquidator acquired possession of shops Nos. 8 and 9, the premises involved in this appeal.
Subsequently, the Liquidator sought direction of the court on April 25, 1979 whether the premises should be let out on lease or licence or whether the furniture and fixtures in the premises should be sold ? The Court gave a direction that the premises be given on caretaker basis after obtaining a proper document on a compensation not less than Rs. 2, 250 per month.
Pursuant to this direction the Liquidator invited offers from persons willing to occupy the premises on terms and conditions laid down by the Court.
On July 2, 1980, the Liquidator sought the direction of the Court whether to accept the offer of M/s Modern Caterers represented by respondent No. 2 herein, Smt.
Sabita V. Adapa.
The Company Judge by his order dated July 3, 1980 directed the Liquidator to accept the offer as modified by the Court of the second respondent.
The Liquidator there upon entered into an agreement on July 29, 1980 with the second respondent and gave possession of the premises to the second respondent on terms and conditions set out in the agreement.
Appellants herein are the Landlords of the building of which the premises involved in this appeal formed part.
Appellants took 661 out Judge 's summons praying for a direction to the Liquidator to terminate the caretaker 's agreement entered into with the 2nd respondent under the directions of the Court, and to hand over vacant and peaceful possession of the premises to the appellants.
There were other prayers in the Judge 's summons with which we are not concerned in this appeal.
The learned Company Judge repelled the contention of the appellants that the so called caretakers ' agreement entered into by the Liquidator with the 2nd respondent was in contravention of the various provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended in 1973 ( 'Rent Act ' for short) and held that in substance and in form it was a caretaker 's agreement which was permissible.
Accordingly, the learned Judge rejected the Judge 's summons in respect of both the prayers.
Appellants preferred an appeal to the Division Bench of the High Court.
The Division Bench held that appellants were not entitled to the notice in respect of the report submitted by the Liquidator for directions in respect of the premises and further observed that the appellants had no right to the present possession of the premises, more so, because the appellants had already filed a suit for eviction in the Small Causes Court at Bombay against the official Liquidator and on this short ground the appeal was dismissed.
Hence this appeal by special leave.
The Company is already ordered to be wound up by the order of the Court dated September 23, 1974.
The name of the Company clearly spells out the objects for which it was formed.
The name of the Company was Chit Centre Pvt.
Ltd. The Company had undertaken the business of floating prize chit schemes.
The nature of business in modern times is sufficiently well known and does not require elaboration.
The Company had set up an office for carrying on this business and the office was set up in premises taken on lease.
The business of the Company of floating prize chit schemes came to a stand still, the moment it was ordered to be wound up.
It is not the Liquidators ' case that he is carrying on business of the Company which is being wound up with the permission of the Court under sec.
457 of the .
457 enables the Liquidators in a winding up by the Court, with the sanction of the court, amongst others, to carry on the business of the Company so far as may be necessary for the beneficial 662 winding up of the Company.
If the floating of the schemes for prize A chits came to a stand still, the moment the Company was ordered to be wound up, there was no question of the business of the Company to be carried on by the Liquidator and that too for the beneficial winding up of the Company.
Whether to carry on the business of the Company which is ordered to be wound up is not a matter left to uncontrolled discretion of the Liquidator.
The Liquidator undoubtedly has the power under sec.
457 to carry on the business of the Company, if it is necessary for the beneficial winding up of the Company.
And this power can be exercised not at the discretion of the Liquidator but with the sanction of the court.
Reliance was placed on In re Batey; Ex parte Emmanuel(1) wherein it was observed that the power to carry on the business can only be exercised for the purpose of the beneficial winding up of the Company not because the creditors may think that the business will be a very profitable one and that the longer it is carried on the better it will, and that they will make a profit from it.
Reliance was also placed on Panchmahals Steel Ltd. vs Universal Steel Traders,(2) wherein it was held that amongst others ' the Liquidator with the sanction of the court has the power to carry on business of the Company so far as may be necessary for the beneficial winding up of the Company.
It is true that the Liquidator cannot carry on business for any other purpose except the purpose for which the power is conferred upon him, namely, for the beneficial winding up of the Company.
He cannot carry on any business on the ground that it would be beneficial to the creditors or the contributors.
The jurisdictional fact which must be ascertained and established for the exercise of the power by the Liquidator to carry on business of a Company, is that carrying on of the business of the Company is necessary for the beneficial winding up of the Company. ' However, the language of the section being unambiguous and clear, one does not need the assistance of precedents to come to a conclusion that the Liquidator with the sanction of the court can carry on the business of the Company only to the extent that such carrying on of the business is necessary for the beneficial winding up of the Company.
Let it at once be made clear that there is no order of the Court brought to our notice which accorded the Court 's sanction to the exercise of the power to carry on the business of the Company by 663 the Liquidator, and we posed a question as to which business of the Company was to be carried on by the Liquidator? The business of A floating prize chits scheme has come to a stand still, the moment the Company was ordered to be wound up.
It is not for a moment suggested that a Liquidator was to float some prize chit schemes or that a pending scheme was to be continued or perused by him.
That is not even the Liquidator 's case nor was it so contended before the learned Company Judge.
The Liquidator has adopted a contradictory posture which the learned Company Judge has unfortunately overlooked.
If the Liquidator wanted to exercise power under Sec.
457 (1) (b) to carry on business of the Company so far as necessary for its beneficial winding up, the business which was to be carried on must be the business of the Company.
Giving premises on lease, licence or under caretaker 's agreement was not the business of the Company.
If some other business of the Company was to be carried, the use of the office premises would be necessary for carrying on the business of the Company.
If possession of the premises was to be retained for carrying on the business of the Company, the Liquidator could not have sought the direction of the court to hand over possession under.
any nomenclature such as lease, licence, caretaker 's agreement or any other facade to the second respondent.
Now if the Liquidator wanted to exercise power under Sec.
457 (1) (b), he ought to have, with reference to the object clause in the Memorandum of Association of the Company, shown that giving on lease or licence or under caretaker 's agreement was part of the routine business of the Company.
Such is not the case here.
In fact, as the business has come to a grinding halt, the office premises are of no use to the Liquidator.
He has therefore, devised a scheme by which he can knock out the compensation for the use and occupation of the premises, not necessary for the use of the Company, in contravention of the Rent Act and unfortunately the Court accorded sanction of this venture of the Liquidator disregarding the relevant provisions of the .
The Company was a tenant or a lessee of the premises of which the appellants are the landlords.
The date of the commencement of the lease is not made available to us, but it is also not claimed on behalf of the Liquidator that there was lease of long duration.
If so, the Company was a statutory tenant under the Rent Act.
The statutory tenancy confers the right to be in possession but 664 if the tenant does not any more require use of the premises, the provisions of the Rent Act and especially Secs.
13 and 15 completely prohibit giving the possession of the premises on licence or on sublease.
The learned Company Judge therefore spelt out a third way of parting with the possession by the Liquidator, namely, that he may give the premises to the second respondent under a caretaker 's agreement.
This caretaker 's agreement appears to us to be an euphemism for collecting compensation which is nothing else but the charge for use and occupation of the premises exclusively by the second respondent.
Whether it is sub lease or licence does not call for decision.
For the purpose of the present proceedings it is enough for us to say that the Company and its Liquidator no more needs.
the premises for its own use.
The Liquidator does not need the use of the premises for carrying on the winding up activities of the Company because he sought direction for parting with possession.
We are not impressed by the learned Judge saving that there is some third mode of parting with possession of the premises exclusively in favour of the second respondent, namely, caretaker 's agreement which appears to us to be a facade to wriggle out of the provisions of the Rent Act.
The Rent Act is no doubt enacted for protecting the tenants, and indisputably its provisions must receive such interpretation as to advance the protection and thwart the action of the landlord in rendering tenants destitutes.
But this does not imply that the court should lend its aid to flout the provisions of the Rent Act so as to earn money by unfair and impermissible use of the premises.
And that is what the Liquidator sought to do and the Court extended its help to the Liquidator.
This, in our opinion, is wholly impermissible.
The learned Company Judge could not have authorised the Liquidator to enter into such an agreement and therefore his order is liable to be set aside.
In the appeal before the Division Bench, this aspect was not at all examined because it h stated that this aspect was not canvassed before the Bench hearing the appeal.
The point we have examined goes to the root of the matter and, therefore, we consider it immaterial whether the point was examined at the hearing of the appeal.
The learned Company Judge could not have permitted holding on to possession of the premises, not needed for efficiently carrying on winding up proceedings.
The only course open to him was to direct the Liquidator to surrender possession to landlords and save recurring liability to pay rent.
Before we part with this judgment, we must 665 take note of one submission that was made on behalf of the respondent.
It was said that the creditors and members of the Company in liquidation have suffered huge losses and if the Liquidator would have been permitted to enter into an agreement with the second respondent, it would fetch a steady income which would have gone towards mitigating the hardships of the creditors and members of the Company.
The accounts of the Company in liquidation were not brought to our notice nor can we permit violation of law howsoever laudable the object of such act may be.
However, we must record a statement made on behalf of the appellants when the aforementioned argument was being examined by us.
It was said that the second respondent was to pay Rs. 2,500 per month as compensation under the directions of the Court.
That would have fetched the Liquidator an income of Rs. 30,000 per year and deducting the costs, expenses and taxes, the Liquidator may have been able to realise at least Rs. 25,000 per year.
The learned counsel for the appellants submitted that adopting a multiplier of six, assuming that roughly six years was the period for which the agreement would have been renewed from year to year, the appellants unconditionally offered to deposit Rs. 1,50,000 in the Court to be distributed at the discretion of this Court amongst the creditors of the Company in liquidation.
We recorded this offer in our order disposing of the appeal.
We are now informed that the amount has been deposited.
The Liquidator is accordingly directed to submit the list of the creditors of the Company with the names, addresses and claims admitted by him within 4 weeks from today when the matter will appear again on board for directions.
These are the reasons which persuaded us to allow the appeal and make the order extracted at the commencement of this judgment.
H.S.K. Appeal allowed.

summary:
The respondent, official liquidator, after being appointed by the Company Judge of the High Court, as Liquidator of a Company, took possession of the office premises of the Company.
The Liquidator sought direction of the Company Judge whether the premises should be let out on lease or licence.
The Company Judge gave a direction that the premises be given on caretaker basis.
Under that direction the Liquidator entered into an agreement with the second respondent and gave possession of the premises to the second respondent.
The appellants, who were the land lords of the building OF which the office premises of the Company formed part, took out Judge 's summons praying for a direction to the Liquidator to terminate the caretaker 's agreement and to hand over vacant possession of the premises to the appellants.
The appellants contended that the so called caretaker 's agreement was in contravention of the various provisions of the Bombay Rents, Hotel, and Lodging House Rates Control Act, 1947 as amended in 1973 ( 'Rent Act ' for short).
The Company Judge held that in substance and in form the agreement entered into by the Liquidator with the second respondent was a caretaker 's agreement which was permissible.
A Division Bench of the High Court dismissed the appeal preferred by the appellants.
Allowing the appeal, ^ HELD: The Company Judge could not have authorised the Liquidator to enter into caretaker 's agreement with the second respondent.
The Liquidator does not need the use of the premises for carrying on the winding up activities of tho Company because he sought direction for parting with possession.
The only course open to the Company Judge was to direct the Liquidator to surrender possession of the premises to the appellants.[664 F; B C; H] 658 Section 457(1) (b) of the gives power to the Liquidator in a winding up by the Court, with the sanction of the Court, to carry on the business of the Company so far as may be necessary for the beneficial winding up of the Company.
If the Liquidator wanted to exercise power under sec.
457(1) (b) to carry on business of the company so far as necessary for its beneficial winding up, the business which was to be carried on must be the business of the Company.
Giving premises on lease, licence or under caretaker 's agreement was not the business of the Company.
Since the Company 's business of floating prize chit schemes came to a stand still, the moment the Company was ordered to the wound up, there was no question of the business of the Company to be carried on by the Liquidator and that too for the beneficial winding up of the Company.
[661 H; 663 C G] In re Batey; Ex parte Emmanuel, [1881] 17 Ch.
Division 35 and Panchmahals Steel Ltd. vs Universal Steel Traders, at 722, referred to.
The company was a tenant or a lessee of the premises of which the appellants are the land lords.
The date of the commencement of the lease is not made available, but it is also not claimed on behalf of the Liquidator that there was lease of long duration.
If so, the Company was a statutory tenant under the Rent Act.
The statutory tenancy confers the right to be in possession but if the tenant does not any more require use of the premises, the provisions of the Rent Act and especially Secs.
13 and 15 completely prohibit giving the possession of the premises on licence or on sub lease.
The Company Judge, therefore, spelt out a third mode of parting with possession of the premises by the Liquidator namely, a caretaker s agreement.
This appears to be a facade to wriggle out of the provisions of the Rent Act.
The Rent Act is no doubt enacted for protecting the tenants, and indisputably its provisions must receive such interpretation as to advance the protection and thwart the action of the landlord in rendering tenants destitutes.
But this does not imply that the court should lend its aid to float the provisions of the Rent Act so as to earn money by unfair and impermissible use of the premises.
[663 H; 664 A F]