judgement:
Civil Appeal No. 1185 of 1979, Appeal by Special Leave from the Judgment and order dated 15.12.1978 of the Gujarat High Court in Sales Tax Reference No. 24 of 1978.
AND Civil Appeal No. 1187 of 1979.
Appeal by Special Leave from the Judgment and order dated 27.11.1978 of the Gujarat High Court in Sales Tax Reference No. 11 of 1977.
K H. Kaji, T. Sridharan, R.D. Pathak, Miss C. K. Sucharita and Mrs. section Bhandare for the Appellant in both the Appeals.
S.T. Desai and M.N. Shroff for the Respondent in both the Appeals.
437 The Judgment of the Court was delivered by VENKATARAMIAH, J.
Since a common question of law is involved in these two appeals by special leave, they are disposed of by this common judgment.
The appellant in Civil Appeal No. 1185 of 1979 is M/s. Hindustan Brown Boveri Ltd., a company engaged in the business of manufacturing certain goods which are used in electrical undertakings for the purpose of generating and distributing electrical energy.
It is registered as dealer under the provisions of the Gujarat Sales Tax Act, 1969 (Gujarat Act No. I of 1970) (hereinafter referred to as 'the Act ').
For the purpose of manufacturing the goods, the appellant which was also a recognised dealer under the Act purchased raw materials during the period between May 6, 1970 and March 31, 1971 after furnishing a certificate in Form No. 19 as provided under section 13(1)(B) of the Act read with Rule 24(4) of the Gujarat Sales Tax Rules, 1970 (hereinafter referred to as 'the Rules ') framed under the Act stating that the raw materials purchased by it would be used in manufacturing taxable goods which would be sold by it in the State of Gujarat.
Some part of the goods manufactured by the appellant were sold to a certain electrical undertaking in the State of Gujarat against 'C ' forms in order to claim exemption from payment of tax on the said sales under the Act by virtue of a notification issued under section 49(2) of the Act exempting the goods sold to electrical undertakings for being used in generation and distribution of electrical energy.
On coming to know of the said sales, the Sales Tax officer.
, who was the assessing authority under the Act levied purchase tax under section 16 of the Act on the raw materials purchased be the appellant on the ground that the undertaking given in Form No. 19 had been violated.
The appeals filed by the appellant before the Assistant Commissioner of Sales Tax and the Gujarat Sales Tax Tribunal against the said levy were unsuccessful.
Thereafter at the instance of the appellant the Tribunal referred the following question of law to the High Court of Gujarat under section 69 of the Act: "Whether on the facts and in the circumstances of the case, and on a correct interpretation of sub section (33) of section 2 of the Gujarat Sales Tax Act, 1969 the Tribunal was right in deciding that the applicant was liable to pay purchase tax under section 16 of the Gujarat Sales Tax Act, 1969 on the ground that certain electric goods manufactured 438 out of raw materials etc.
purchased against declaration in Form 19 were sold to Gujarat State Electricity Board against declarations in Form prescribed in Entry 5 of the Government Notification issued under section 49 of the Gujarat Sales Tax Act, 1969 ?" The appellant in Civil Appeal No. 1187 of 1979 is M/s. Hindustan Engineering Co. Ltd. which is engaged in manufacturing heavy machinery and gear conveyers.
It is also a recognised dealer under the Act.
Like the appellant in Civil Appeal 1185 of ]979, this appellant also purchased raw materials by furnishing certificates in Form No. 19 and later on sold a part of the goods manufactured by it to a certain electrical undertaking against Form No. 'C ' and claimed exemption under the notification issued under section 49(2) of the Act.
In this case also the Sales Tax officer levied purchase tax under section 16 of the Act for violation of the undertaking given in Form No. 19.
The appeals to the Assistant Commissioner of Sales Tax and the Gujarat Sales Tax Tribunal failed.
Thereafter at the instance of the appellant, the Gujarat Sales Tax Tribunal referred the following question for the opinion of the High Court of Gujarat: Whether on the facts and in the circumstances of the case, the Tribunal is justified in holding that the sales of machineries and conveyers manufactured by the applicant to an electrical undertaking against Form 'C ' under Entry 5 of the Government Notification issued under section 49 of the Gujarat Sales Tax Act, 1969 resulted in the breach of the declarations in Form 19 as the goods so manufactured and sold did not amount to manufacture of taxable goods ?" It is seen from the two questions referred to above that they are substantially the same.
The High Court answered the said questions in favour of the Revenue and against the assessees by two separate orders following its earlier decision in M/s. Nawroji N. Vakil & Co. vs State of Gujarat.
The appellants have filed these appeals against the decision of the High Court by special leave under Article 136 of the Constitution.
We shall now briefly refer to the relevant provisions of the Act.
Section 2(10) of the Act defines a 'dealer ' as any person who 439 buys or sells goods in connection with his business and when he obtains a certificate of registration he becomes a registered dealer.
Section 32 of the Act provides for the recognition of a registered dealer.
It says that where during the previous or current year, the value of all taxable goods manufactured for sale by a dealer registered under section 29 or by a dealer registered under section 30, whose turnover of sales or purchases has subsequently, exceeded the limits specified in sub section (4) of section 3, exceeds Rs. 3,000/ such dealer on application by him may be granted recognition by the Commissioner and on such recognition being granted, he becomes a recognised dealer.
Section S of the Act says that subject to the conditions or exceptions (if any) set out against each of the goods specified in column 3 of the Schedule I to the Act, no tax shall be payable on the sales or purchases of any goods specified in that Schedule.
Section 6 of the Act provides that subject to the provisions of the Act and to any rules made thereunder there shall be paid by every dealer who is liable to pay tax under the Act, the tax or taxes leviable in accordance with the provisions of Chapter II of the Act.
Tn order to ensure that as far as possible the incidence of tax under the Act is not felt at more than one point in the series of transactions of sales and purchases of goods other than declared good in the State of Gujarat, sections 7, 8 and 10 of the Act are enacted as follows: "7.
Levy of sales tax on goods in Schedule II, Part A.
There shall be levied a sales tax on the turnover of sales of goods specified in Part A of Schedule II at the rate set out against each of them in column 3 thereof, but after deducting from such turnover, (i) resale of goods on the purchase of which the dealer is liable to pay purchase tax under sec.
(ii) resales of goods purchased by him from a Registered dealer (iii) sales of goods, of resales of goods to which clauses (i) and (ii) do not apply, to a Recognised dealer or to a Commission agent holding a permit who purchases on behalf of a principal who is a Recognised dealer, upon such dealer or Commission agent, as the case may be, furnishing in the circumstances and subject to the conditions specified in sub clause (B) and item (ii) of sub clause (C) of 440 sub see.
(1) of sec.
13, a certificate as provided therein, and (iv) sales of goods or resales of goods to which clauses (i) and (ii) do not apply, to a Licensed dealer or to a Commission agent holding a permit who purchases on behalf of a principal who is a Licensed dealer, upon such dealer or Commission agent, as the ease may be; furnishing in the circumstances and subject to the conditions specified in item (i) of sub clause (A) and item (i) (a) of sub clause (C) of sub sec.
(I) of sec.
13, a certificate as provided therein.
Levy of general sales tax on goods in Schedule II Part B There shall be levied a general sales tax on the turnover of sales of goods specified in Part of Schedule II at the rate set out against each of them in column 3 thereof, but after deducting from such turnover, (i) resales of goods on the purchase of which the dealer is liable to pay purchase tax under see.
16; (ii) resales of goods purchased from a Registered dealer by a dealer who is not a Licensed dealer at the time of such purchase, and (iii) sales of goods, or resales of goods to which clauses (i) and (ii) do not apply, to a Licensed dealer, Recognised dealer or to a Commission agent holding a permit, who purchases on behalf of a principal who is a Licensed dealer or a Recognised dealer, upon such dealer or Commission agent as the ease may be furnishing, in the circumstances and subject to the conditions specified in see.
13, a certificate as provided therein.
" " 10.
Levy of sales tax and general sales tax on goods specified in Schedule III. (I) There shall be levied a sales tax on the turnover of sales of goods specified in Schedule III at the rate set out against each of such goods in column 3 thereof, but after deducting from such turnover, (i) resales of goods on the purchase of which the dealer is liable to pay purchase tax under see.
16, 441 (ii) resales of goods purchased by him from a Registered dealer, (iii)sales of goods.
Or resales of goods to which clauses (i) and (ii) do not apply, to a Recognised dealer or to a Commission agent holding a permit who purchases on behalf of a principal who is a Recognised dealer, upon such dealer or Commission agent, as the case may be, furnishing in the circumstances and subject to the conditions specified in sub clause (B) and item (ii) of sub clause (C) of sub sec.
(1) of sec 13, a certificate as provided therein, and C (iv) sales of goods or resales of goods to which clauses (i) and (ii) do not apply, to a Licensed dealer or to a Commission agent holdings permit who purchases on behalf of a principal who is a Licensed dealer, upon such dealer or Commission agent as the case may be, furnishing in the circumstances and subject to the conditions specified in item (i) of sub clause (A) and item (i) (a) of sub clause (C) of sub sec.
(1) of sec.
13, a certificate as provided therein.
(2) There shall be levied a general sales tax on the turnover of sales of goods specified in Schedule III at the rate set out against each of such goods in column 4 thereof, but after deducting from such turnover (i) resales of goods purchased from a Registered dealer, by a dealer who is not a Licensed dealer at the time of such purchase; and (ii) sales of goods, or resales of goods which clause (i) does not apply to a Licensed dealer, or Recognised dealer or a Commission agent holding a Permit who purchases on behalf of a principal who is a Licensed dealer or a Recognised dealer upon such dealer or Commission agent, as the case may be, furnishing in the circumstances and subject to the conditions specified in sec.
13 a certificate as provided therein.
" 442 It may be noted that in the above provisions that from the turnover of sales of goods of a dealer which are otherwise taxable, the turnover of goods sold to a Recognised dealer, upon such Recognised dealer furnishing in the circumstances and subject to the conditions specified in sub clause (B) of sub section (1) of section 13 of the Act a certificate as provided therein becomes deductible and no tax is payable on such sales in favour of the Recognised dealer.
The relevant part of section 13 of the Act reads thus: "13.
No deduction from turnover except on a certificate. (1) There shall not be deducted from the turnover of sales, sales of goods to a Licensed dealer, Recognised dealer or to a Commission agent holding a permit purchasing on behalf of his principal, as provided in sections 7, 8 and 10 unless (A). (B) The Recognised dealer certifies in the prescribed form, that the goods other than prohibited goods sold to him are goods purchased by him for use by him as raw or processing materials or as consumable stores in the manufacture of taxable goods for sale by him; or Rule 24(4) of the Rules prescribes that the certificate issued by a Recognised dealer shall be in Form No. 19.
The relevant part of Form No. 19 reads: ". and that the goods purchased by me/the said . . and specified in bill/cash memo/invoice No . dated. . of M/s. . address. . will be used by me/the said. as raw/or processing materials or consumable stores in the manufacture of taxable goods viz. . for sale by me/the said. . and that such sale shall not take place outside the State of Gujarat.
(Emphasis supplied)" The expression 'taxable goods ' is defined by section 3(33) of the Act thus: "2(33).
"taxable goods" means goods other than those on the sale or purchase of which no tax is payable under sec.
5 or sec.
49 or a notification issued thereunder.
" 443 Sub section (1) of section 49 provides that subject to the conditions or exemptions.
if any, specified in relation to them, the classes of sales or purchases referred in clauses (i) to (vii) of section 49(1) shall be exempt from the payment of the whole of tax payable under the provisions of the Act.
Sub section 2 of section 49 of the Act authorises the State Government to exempt any other specified class of sales by a notification published in the Official Gazette.
Section 49(2) reads: "49.
Exemptions (1) (2) Subject to such conditions as it may impose, the State Government may, if it considers it necessary so to do in the public interest, by notification in the Official Gazette, exempt any specified class of sales or purchases from payment of the whole or any tax payable under the provisions of this Act. ' By a notification dated April 29, 1970 issued under section 49(2) of the Act the State Government exempted the entire tax payable on sales of goods (other than prohibited goods) by a registered dealer to an electrical undertaking, certified for the purpose by the Commissioner, if the electrical undertaking furnished to the selling dealer a certificate in Form appended to the notification stating inter alia that the goods purchased were required for the use of the generation or distribution of electrical energy by the undertaking.
In view of the above notification the sales made to the electrical undertaking become exempt from payment of sales tax under the Act on the undertaking furnishing the required certificate and no tax was paid by the appellants in these two appeals on sales of goods effected by them in favour of the electrical undertaking.
It is now necessary to refer to section 16 of the Act, the relevant part of which reads : "16.
Liability to purchase tax for contravention of terms of certificate etc. (1) Where any dealer or Commission agent has purchased any taxable goods under a certificate given by him under section 12 or 13, and (a) contrary to such certificate, the goods are used for another purpose, or are not resold or despatched in the manner and within the period certified, or 444 (b) on the resales in the course of inter State trade or commerce, of the goods so purchased, no tax under the (LXXIV of 1956), is actually payable by him on account of any deduction admissible under any of the Provisions of the said Act.
then such dealer or Commission agent shall be liable to pay tax on the purchase price of the goods purchased under such certificate; and accordingly, he shall include the purchase price thereof in his turnover of purchases in his declaration or return under section 40 which he is to furnish next thereafter.
(2) . . (3) the purchase tax leviable under this section in respect of any goods specified in Schedule II or III shall be the aggregate of all taxes which would have been leviable thereon but for the certificate given under section 12 or 13.
(4) If any question arises whether the purchase price of goods purchased under a certificate given under section 12 or 13 is not liable to be included in the turnover of purchases of a dealer or Commission agent under this section, the burden of so proving shall be upon such dealer, or as the case may be, the Commission agent.
" Section 16 of the Act provides that where a dealer has purchased any taxable goods under a certificate given by him under section 13 and has used the goods for a different purpose contrary to such certificate, then such dealer shall be liable to pay tax on the purchase price of the goods purchased under such certificate and his liability has to be computed in the manner stated in that section.
It is this liability of the appellants that is in dispute in these appeals.
It is not disputed that the appellants are recognised dealers; that they had purchased raw materials which were taxable goods (other than prohibited goods) from registered dealers against certificates issued by them in Form No. 19; that no sales tax had been paid on sales in their favour; that they had manufactured goods by using the said raw materials that they had sold a part of the goods to an electrical undertaking notified under section 49(2) of the Act and that no tax had been paid on sales effected by them in 445 favour of the electrical undertaking.
It is also not disputed that in Form No. 19 the appellants had stated that the raw materials purchased by them would be used to manufacture taxable goods which would be sold inside the State of Gujarat.
The question for consideration is whether the appellants had used the raw materials for another purpose contrary to the terms of Form No. 19.
The contention of the Department is that the appellants had contravened Form No. 19 by manufacturing goods which were not 'taxable goods ' and hence were liable to pay purchase tax on the purchase of raw materials under section 16 of the Act and the contention of the appellants is that the goods manufactured and sold by them to the electrical undertakings were 'taxable goods ' and merely because they were sold to an electrical undertaking under transactions exempted by section 49(2) of the Act, the goods did not cease to be taxable goods.
The solution to the question, therefore, lies on the true meaning of the expression 'taxable goods '.
Relying upon the decision of this Court in the Stale of Tamil Nadu vs M.K. Kandaswami and Ors.
it is urged on behalf of the appellants that the expressions 'taxable persons ', 'taxable goods ' and 'taxable events ' are entirely different concepts in sales tax law; that the goods in question were taxable goods as any sale of those goods not covered by section 49(1) and (2) would make such sale taxable and that section 49(1) and (2) of the Act referred to only events which resulted in the exemption from payment of sales tax.
It is further argued that all goods the sale or purchase of which is liable to tax under the Act are taxable goods and that goods would not be taxable goods only when their sales are exempted generally from payment of tax as provided in section 5 of the Act.
It is, therefore, contended that the goods manufactured by the appellants not having been goods, the sale or purchase of which had been exempted from tax by inclusion in Schedule I to the Act, the appellants could not be treated as having infringed the terms of Form No. 19, notwithstanding the existence of the circumstance that the particular sales made by them to the electrical undertakings were exempt from payment of tax.
The second ground urged on behalf of the appellants is that the condition under Form No. 19 became satisfied immediately on the goods being manufactured by the appellants as at that stage the goods were really taxable and that a subsequent event of sale to the electrical undertaking cannot be considered as having violated the said condition.
The third ground urged by the appel 446 lants is that a transaction of sale involved two facets a sale and a purchase and if a sale is exempted from tax, it cannot be said the purchase is also exempted.
On the above footing it is contended that since under section 49(2) only the tax on sale is exempted and nothing is said about the liability of the purchaser to tax, it cannot be said that the goods which were otherwise taxable had become non taxable on being sold under a transaction which attracted section 49(2) of the Act.
We find no substance in any of the three grounds urged on behalf of the appellants for the reason that the present case is governed by the definition of the expression 'taxable goods ' in section 2(33) of the Act.
It is interesting to note that the Bombay Sales Tax Act, 1959 (Bombay Act No. 1 of 1959) which was in force in the State of Gujarat before the Act came into force and which was repealed by section 88 of the Act contained the definition of the expression 'taxable goods ' in section 2(33) thereof.
The expression 'taxable goods ' was defined in the Bombay Act as 'goods other than those on the sale or purchase of which no tax is payable under section 5 '.
In the Bombay Act there was also a provision corresponding to section 49 of the Act in section 41 thereof which empowered the State Government subject to such conditions as it may impose to exempt by a notification published in the Official Gazette any specified class of sales or purchases from payment of the whole or any part of any tax payable thereunder if the State Government was satisfied that it was necessary so to do in the public interest.
Still the definition of 'taxable goods ' in that Act did not refer to sales exempted under section 41 thereof.
But in the Act which repealed and replaced the Bombay Act the meaning of the expression 'taxable goods ' has been narrowed down as section 2(33) of the Act reads 'taxable goods ' means goods other than those on the sale or purchase of which no tax is payable under section 5 (which corresponds to section 5 of the Bombay Act) and section 49 of the Act (which corresponds to section 41 of the Bombay Act) or a notification issued thereunder.
By this definition, the dichotomy that is stated to exist between 'taxable goods ' and 'taxable events ' has been given a go by.
It may be that section 5 and Schedule I refer to goods only but section 49 deals with only taxable events which result in the exemption from payment of tax on the conditions mentioned therein or in the notification issued thereunder being satisfied even though the goods in question do not come under Schedule I.
Secondly one has to wait till the disposal of the goods by the dealer to find out whether the goods are taxable goods or not in view of the 447 definition of the said expression which takes away goods sold under circumstances attracting section 49 from the scope of the meaning of that expression.
Nor does the third ground survive for the very same reason.
If the sale is exempt from tax under section 49 of the Act, the goods sold would not be taxable goods.
We need not go into the question whether the purchaser in a sale under section 49 of the Act has to pay tax in these cases.
This reason also disposes of an allied argument of the appellants that the possibility of any liability arising under section 50 of the Act on the breach of any condition imposed by section 49 or the notification issued thereunder would absolve the appellants of their liability to pay the tax under section 16 of the Act.
Any such levy made under section 50 has not been shown to have any effect in law on the liability of the appellants under section 16.
The scheme of the Act appears to be that sales tax should be levied on goods which are not included in Schedule I at least once inside the State in the series of sales and purchases even though they may have been converted into manufactured goods and that is why Form No. 19 requires the purchaser to state that the goods will be used by him as raw or processing materials or as consumable stores in the manufacture of taxable goods for sale by him inside the State and section 16 of the Act provides that where any dealer has purchased any taxable goods under a certificate given by him under section 12 or section 13 of the Act and contrary to such certificate the goods are used for another purpose or are not resold or despatched in the manner and within the period certified or on the resales in the course of inter State trade or commerce, of the goods so purchased no tax under the is actually payable by him on account of any deductions admissible under any of the provisions of that Act, then such dealer shall be liable to pay tax on the purchase price of the goods purchased under such certificate.
The deliberate alteration of the definition of 'taxable goods ' in the Act also is attributable to the said intention of the State legislature.
The appellants also cannot derive any assistance from the decision of this Court in Polestar Electronic (Pvt.) Ltd. vs Additional Commissioner, Sales Tax and Anr.
as these cases are governed by 448 the provisions of the Act and as there appears to be no similarity between the facts of these appeals and the facts involved in that case.
For the foregoing reasons, we do not find any merit in these appeals.
The appeals are dismissed with costs.
Hearing fee one set.

summary/full:
Exercising power under section 49(2) of the Gujarat Sales Tax Act, 1969, the State Government exempted the entire tax payable on sale of goods (other than prohibited goods) by a registered dealer to an electrical undertaking, certified for the purposes by the Commissioner; if the electrical undertaking, furnished to the selling dealer a certificate in the requisite form that the goods purchased were required for the generation or distribution of electricity by the undertaking.
But according to section 16 or the Act where a dealer has purchased any taxable goods under a certificate given by him under section 13 and has used the goods for a purpose contrary to such certificate, such dealer becomes liable to pay tax on the purchase price of the goods.
The appellants who were recognised dealers purchased raw materials of taxable goods from registered dealers by furnishing a certificate in Form 19 by reason of which no sales tax had been paid by them.
After manufacturing the goods with raw materials,, they sold part of the manufactured goods to an electrical undertaking in the State against 'C ' forms to claim exemption from tax on them by virtue of a notification issued under section 49(2) of the Act.
No tax had been paid on sales effected by them in favour of the electrical undertaking.
On the ground that the undertaking furnished in form 19 had been violated, the Sales Tax officer levied purchase tax under section 16 on the raw materials purchased by the appellants.
The appellants were unsuccessful in their appeals before the Assistant Commissioner as well as before the Sales Tax Tribunal.
The High Court answered the references against the assessees and in favour of the Revenue.
It was contended on behalf of the appellants (1) that the goods manufactured by them not having been goods the sale or purchase of which had been exempted from tax by inclusion in Schedule I they could not be treated as having infringed the terms of Form No. 19 notwithstanding the fact that particular sales made by them to the electrical undertaking were exempted from payment of tax (2) the condition in form 19 became satisfied immediately on the 436 goods being manufactured by the appellants as at that stage the goods were really taxable and that a subsequent event of sale to the electrical undertaking could not be considered as a violation of the said condition and (3) in a transaction of sale if the sale was exempted from tax it could not be said that the purchase was also exempted.
Dismissing the appeal, ^ HELD: (1) The expression "taxable goods '.
defined in section 2(33) of the Act means goods other than those on the sales or purchase of which no tax is payable under section 5 and section 49 or a notification issued thereunder.
By this definition the dichotomy that existed between "taxable goods" and "taxable events" in the now repealed Act (The Bombay Sales Tax Act, 1959 which was in force in the State before the present Act) had been given a go by.
It may be that section 5 and Schedule I refer to goods only but section 49 deals with only taxable events which result in the exemption from payment of tax on the happening of the conditions mentioned therein or in the notification even though the good in question do not come under Schedule 1.
[446 F H] (2) To find out whether the goods are taxable goods or not one has to wait till the disposal of the goods by the dealer in view of the definition of the said expression which takes away goods sold under circumstances attracting section 49 from the scope of the meaning of that expression.
[447 A] (3) If the sale is exempt from tax under section 49 the goods sold would not be taxable good.
[447 B]


judgement:
: Contempt Appeal No. 19 of 1981.
From the judgment and order dated the 17th November, 1980 of the Himachal Pradesh High Court at Simla in Contempt Petition (Crl.) No. 7 of 1980.
V. M. Tarkunde, section section Ray, K.K.Venugopal, Dr. L. M. Singhvi, Kapil Sibbal, C. M. Nayar and L. K. Pandey for the Appellant.
L. N. Sinha, Attorney General for the Respondent (Registrar, High Court) K. Parasaran, Soli.
General and Miss A. Subhashini for the Respondent (State of H. P.) 538 The Judgment of the Court was delivered by CHANDRACHUD,C. J.
This is an appeal under sec.
19(1)b of the , ("the ",) against the judgment of the High Court of Himachal Pradesh dated November 17, 1980 in Contempt Case (Criminal) No. 7 of 1980, whereby the appellant was sentenced to simple imprisonment for six months and a fine of Rs. 200.
The appellant practises as an Advocate at Solan which is a district place in the State of Himachal Pradesh.
It appears that only one court generally sits at Solan which is that of the Senior Sub Judge cum Chief Judicial Magistrate.
The learned Judge, who presides over that Court, also exercises the powers of a Rent Controller and of the Court of Small Causes.
On June 18, 1980, Shri Kuldip Chand Sud, who was the Presiding Officer of the Court, was hearing a petition under the Rent in which the petitioner was represented by the appellant.
When the case was called out for hearing, the learned Judge noticed that the petitioner had not paid the process fee, as a result of which the summons could not be issued to the respondent.
The Judge therefore proceeded to dismiss the petition under Order 9, Rule 2 of the Civil Procedure Code.
Taking umbrage at the dismissal of the petition, the appellant hurled his shoe at the Judge which hit him on the shoulder.
The Judge asked his Orderly to take the appellant in custody but the appellant slipped away.
The Judge evidently wanted to proceed under section 228 of the Penal Code for which purpose he issued a warrant of arrest against the appellant.
The appellant successfully evaded the warrant and managed to prevent proceedings being taken by the Judge for the contempt of his court.
The Judge then made a reference to the High Court of Himachal Pradesh under section 15(2) of the .
The High Court issued notice to the appellant enclosing therewith a copy of the reference made by the Judge.
The appellant did not dispute in the High Court that he hurled a shoe at the Judge.
He explained his conduct by saying that he acted under an irresistible impulse generated by the provocative language used by the Judge.
The appellant 's version is like this: On the previous date of hearing, the Judge had directed the appellant to pay fresh process fee and to supply the address of the respondent to the Rent petition.
The appellant informed the Judge that he was unable to comply 539 with that order since the respondent had been admitted to a hospital and had since left the hospital.
The house in which the respondent lived was locked.
The Judge then declared that he proposed to take action under Order 9 Rule 2 of the Civil Procedure Code.
The appellant asked the Judge to record his statement as to why he was unable to pay the process fee and supply the address of the respondent.
Instead of recording the appellant 's statement, the Judge remarked: "You rascal, I will set you right".
The appellant protested at the abusive language used by the Judge, but the Judge retorted: "I repeat what I said".
The appellant thereafter lost control over himself and under the "extreme heat of moment and passion, his hand fell on his shoe" which he threw towards the dais.
Many persons were present in the court who witnessed the incident.
After hurling the shoe at the dais, the appellant took off his coat and tie and told the court: "An unfortunate incident has happened.
Do you want to take any action against me ? I surrender".
Upon this the Judge remarked: "You scoundrel get out of my court".
The appellant thereafter left the court room.
The High Court had called for the comments of the Judge on the version of the appellant, from which it was satisfied that the appellant was making a false allegation that the Judge had used abusive language against him.
The High Court also held that the appellant had given an untrue version of the very genesis of the incident since the Judge had not given any direction for furnishing the complete address of the respondent before him.
Many technical contentions were raised in the High Court, one of them being that section 10 of the was a bar to the High Court taking cognizance of the matter.
It is unnecessary to go into that question or into various other matters raised in the High Court on behalf of the appellant since, Shri V. M. Tarkunde and Shri section section Ray who appear on behalf of the appellant, stated before us that the appellant did not desire to take a contentious attitude.
It was stated on behalf of the appellant that he was prepared to tender an unconditional written apology to this Court and to produce evidence before us of his having tendered a similar apology to the trial court.
Such apologies have been duly tendered.
Learned counsel appearing on behalf of the appellant appealed to us in all their persuation that in view of the fact that the appellant 540 was genuinely repentant for his conduct, he should be enlarged on a mere admonition.
Counsel plead that the appellant evidently lost his balance and whether or not there was any justification for it, he acted under the impulse of grave passion for which he has been sufficiently punished by the publicity which the incident has received and the notoriety which he has invited for himself.
We had made it clear to the learned counsel at the very time when they conveyed to us the willingness of the appellant to apologise that we offer no promise or inducement that if the appellant apologises we will take a lenient view of the matter.
In our opinion the appellant is guilty of conduct which is highly unbecoming of a practising lawyer.
He hurled his shoe at the Judge in order evidently to overawe him and to bully him into accepting his submission that the case should not be dismissed under Order 9 Rule 2, C.P.C. The appellant did his best or worst to see that the petition was not dismissed for non payment of process fee and finding that the Judge was not willing to accept his argument, he took out his shoe in show of his physical prowess.
We cannot adequately condemn the appellant 's behaviour which strikes us as most reprehensible, remembering that, as a practising lawyer, he is an officer of the court.
Such incidents can easily multiply considering the devaluation of respect for all authority, whether in law, education or politics.
We do not, however, propose to impose a long sentence of imprisonment on the appellant, since he has tendered an unconditional apology to this Court and to learned trial Judge.
The appellant was present in our Court at the time when his appeal was argued and though, on such occasions, histrionics cannot entirely be ruled out, we did form an impression, backed by our small little experience of life and its affairs, that the appellant is deeply regretful and genuinely contrite.
He has suffered enough in mind and reputation and no greater purpose is going to be served by subjecting him to a long bodily suffering.
Accordingly, we reduce the sentence of six months to a period of one month, enhance the fine from Rs. 200 to Rs. 1000 and direct that the fine, if recovered, shall be paid over to a Legal Aid Society, if any, functioning in the State of Himachal Pradesh.
The High Court will decide which society should get the money, if there is more than one such society, of which there is precious little likelihood.
Order accordingly.
We will be failing in our duty if before parting with the case we did not draw attention to what the appellant 's counsel Shri 541 Bhagirath Das said in the High Court during the course of his arguments.
Shri Bhagirath Das told the learned Judges of the High Court: "Better part of discretion is to ignore it instead of fanning it.
It is a tussle between legal profession and judiciary".
(emphasis supplied since it must have been placed).
This part of the argument of the appellant 's counsel in the High Court is as much to be regretted as the conduct of the appellant before the learned trial Judge.
Discretion is undoubtedly the better part of valour but we did not know, until we read the argument advanced by the appellant 's counsel in the High Court, that the better part of discretion is to ignore that a practising advocate had hurled a shoe at a Judge.
We are also unable to understand how the High Court was "fanning" the incident by taking cognizance of it, which it was its clear duty to do.
It makes sorry reading that "a tussle between legal profession and judiciary" should find its culmination in a member of that noble profession throwing a shoe at a Judge.
Those who are informed of the question and think deeply upon it entertain no doubt that the Bar and the Bench are an integral part of the same mechanism which administers justice to the people.
Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them.
It ought to be a matter of equal pride to the Bar.
It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge.
A discourteous Judge is like an ill tuned instrument in the setting of a courtroom.
But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.
All this, of course, is said without meaning any disrespect to Shri Bhagirath Das.
Not he, but what he said, is the cause of this comment.
N.V.K. Appeal partly allowed.

dataset_name: IN-Abs

summary/full:
The appellant a practising Advocate appeared for the petitioner in a petition under the Rent Act.
When the case was called out for hearing, the Judge noticed that the petitioner had not paid the process fee, as a result of which the summons could not be issued to the respondent.
The Judge, proceeded to dismiss the petition under Order IX Rule 2 of the Civil Procedure Code.
Taking umbrage at the dismissal of the petition the appellant hurled his shoe at the Judge which hit him on the shoulder.
The Judge intending to proceed under Section 228 of the Penal Code issued a warrant of arrest against the appellant.
The appellant evaded the warrant and successfully managed to prevent proceedings being taken by the Judge for the contempt of his Court.
The Judge thereupon made a reference to the High Court under Section 15(2) of the .
Before the High Court the appellant did not dispute that he hurled a shoe at the Judge.
He explained his conduct by saying that he acted under an irresistible impulse generated by the provocative language used by the Judge.
The High Court being satisfied, that the appellant was making a false allegation that the Judge had used abusive language against him and that he had given an untrue version of the very genesis of the incident, held the appellant guilty of contempt of Court and sentenced him to simple imprisonment for six months and a fine of Rs. 200/ .
In the appeal to this Court it was pleaded that the appellant evidently lost his balance and whether or not there was any justification for it, he acted under the impulse of grave passion for which he had been sufficiently punished by the publicity which the incident had received and the notoriety which he had invited for himself and as the appellant was genuinely repentant for his conduct he should be enlarged on a mere admonition.
Allowing the appeal in part, ^ HELD: 1.
(i) The sentence of simple imprisonment for six months is reduced to a period of one month and the fine for Rs. 200/ is enhanced to Rs. 1000/ .
537 The fine if recovered shall be paid over to the Legal Aid Society functioning in the State.
[540 G] (ii) The appellant is guilty of conduct which is highly unbecoming of a practising lawyer.
He hurled his shoe at the Judge in order to overawe him and to bully him into accepting his submission that the case should not be dismissed under Order IX Rule 2 C.P.C.
The appellant did his best or worst to see that the petition was not dismissed for non payment of process fee and finding that the Judge was not willing to accept his argument, he took out his shoe in show of his physical prowess.
[540 C] (iii) The appellant 's behaviour is condemned.
It is most reprehensible remembering that, as a practising lawyer he is an officer of the Court.
[540 D] (iv) A long sentence of imprisonment is not imposed on the appellant since he has tendered an unconditional apology to this Court and to the trial Judge.
The appellant is deeply regretful and genuinely contrite.
He has suffered enough in mind and reputation and no greater purpose is going to be served by subjecting him to a long bodily suffering.
[540 E, F] 2.
(i) The argument of the appellant 's counsel in the High Court that: "better part of discretion is to ignore it instead of fanning it.
It is a tussle between legal profession and judiciary", is as much to be regretted as the conduct of the appellant before the trial Judge.
[541A B] (ii) The Bar and the Bench are an integral part of the mechanism which administers justice to the people.
A discourteous Judge is like an ill tuned instrument in the setting of a Court room.
But Members of the Bar will do well to remember that flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.
[541 E, F]


judgement:
Civil Appeal Nos.
1256 1258 of 1981.
451 Appeals by Special Leave from the Judgment and Order dated 9.9.1980 of the Calcutta High Court in Appeal Nos. 94, 122 & 95 of 1980 respectively.
S.N. Kacker and H.R. Puri for the Appellant.
Shankar Ghosh, B.P. Maheshwari and Miss Asha Jain for Respondent No. 1.
Dalip Sinha, G.S. Chatterjee and P.K. Chatterjee for Respondent No. 2.
The Judgment of the Court was delivered by DESAI, J.
M/s Jethabhai Khatu & Co., a partnership firm, is the appellant in all the three appeals.
The respondents in all the three appeals are: (1) Luxmi Narayan Cotton Mills Ltd., an incorporated Company ( 'company ' for short), (2) State of West Bengal, (3) S.K. Dutta, who was for some time a receiver appointed by the High Court; (4) Grindlays Bank, ( 'Bank ' for short), having a fixed deposit account in the name of Receiver.
S.K. Dutta on behalf of Luxmi Narayan Cotton Mills Ltd., (5) A.K. Dutta, and (6) R.C. Deb, who claim to have been appointed as joint receivers after removal of Sh.
S.K. Dutta.
Appellant filed suit No. 1194/66 against the company on the original side of the Calcutta High Court to recover a certain amount due under two separate heads.
By the time the suit came up for hearing the board of Directors of the 1st respondent company was superseded and one Gurudas Sharma was appointed as an Administrator.
The Administrator on behalf of the 1st respondent company entered into a compromise with the appellant in respect of the claim in suit of the appellant and after obtaining leave of the Court to settle the matter, invited a consent decree by which the company was held liable and directed to pay Rs. 2,85,000 with interest thereon at 6% per annum from January 6, 1970, the date of the decree, till realisation.
The Ist respondent company was given an option to pay the decretal amount by monthly instalments of Rs. 5,000, the first instalment becoming due and payable on March 15, 1970, and each subsequent instalment to be paid by 15th day of the next succeeding month.
The default clause in the consent decree provided that if the company committed default in payment of any two instalments within the time stipulated in the decree, the whole of the decretal amount and the interest on the balance of the decretal 452 amount will become due and payable at once.
It appears that the Ist respondent company received Rs. 15,00,000 from the Custodian of Enemy Property in respect of its cotton Mills situated in Narayanganj, Bangladesh.
The 3rd respondent S.K. Dutta appears to have been appointed a receiver in respect of this compensation amount and he appears to have deposited Rs. 8,40,000 out of the compensation amount in fixed deposit account evidenced by receipt No.1002 2539 with the Bank at its Netaji Subhash Road Branch, Calcutta.
The appellant, by an order dated April 5, 1978, of the Calcutta High Court, obtained leave to execute the decree by attachment of funds lying in the hands of the 3rd respondent receiver S.K. Dutta (Annexure 'D ').
By the date of the order Rs. 4,20,702.94 p. had become due and payable under the decree.
Pursuant to this order an interim attachment was levied under order 21 Rule 52 C.P.C.
On the amount covered by the aforementioned fixed deposit receipt, and accordingly the Master of the Court, Shri S.K. Ghosh informed the 3rd respondent receiver by the writ of the Court dated April 12, 1978, that the receiver shall hold the money under the fixed deposit account subject to such order as may be made respecting the same in the suit in which he had been appointed a receiver and subject to further orders of the Court (Annexure 'E ').
The Master confirmed the interim attachment by his order dated April 24, 1978 (Annexure 'F ').
On May 4, 1978 upon a petition by the appellant the Court directed the receiver 3rd respondent to pay the sum of Rs. 4,20,702.94 to the appellant decree holder out of the amount in the fixed deposit account of the judgment debtor with the Bank in fixed deposit receipt No. 1002 2539 standing in the name of the receiver which was attached in terms of order dated April 12, 1978, as confirmed by the order dated April 24, 1978.
Presumably neither the 3rd respondent receiver nor the Bank effectively implemented the order dated May 4, 1978, whereupon the appellant moved the Court during the vacation on May 24, 1979, for an appropriate direction and a learned single Judge of the Calcutta High Court working as vacation judge gave the directions prayed for.
As this order has some legal consequences in this matter, it would be advantageous to extract it.
It reads as under: "There will be an order in terms of prayers (a) & (b) of the petition.
Prayer (a): That the receiver Sudhir Kumar Dutta be forthwith directed to instruct and intimate to the Grindlays Bank Ltd., Netaji Subhash Road Branch, Calcutta, to pay 453 a sum of Rs. 4,29,702.94 p. to the petitioner decree holder in terms of the payment order dated 4th May, 1978 out of the amount of the Fixed Deposit of the judgment debtor with Grindlays Bank Ltd., in Fixed Deposit Receipt No. 1002 2539 which has been Lying attached in terms of the order dated 12th April, 1978 and is confirmed by the order dated 24th April, 1978 and the said Grindlays Bank Ltd., Netaji Subhash Road, Branch, Calcutta, be directed to pay the said sum of Rs. 4,20,702.94 p. to the petitioner decree holder; Prayer (b): That Grindlays Bank Ltd., Netaji Subhash Road Branch, Calcutta, be directed to pay the said sum of Rs. 4,20,702.94 p. to the petitioner decree holder in terms of the payment order dated 4th May, 1978, out of the said fixed deposit receipt No. 1002 2539.
" Effectively this order of the Court directed the receiver to pay the amount therein mentioned to the decree holder and the Bank, the keeper of the fixed deposit account of the receiver was also put under an obligation not to raise any objection on receiver withdrawing the money and paying the same to the decree holder.
In fact upon its true construction, the Bank was also under an obligation to take effective steps to pay the amount mentioned in the order to the decree holder.
It appears that these directions were not obeyed.
Consequently, the appellant moved the Court for holding the 3rd respondent receiver S.K. Dutta and the 4th respondent Bank in contempt and for passing appropriate order for punishing them for contempt unless they purged themselves of the contempt.
On June 7, 1979, when the petition for taking action against the alleged contemners came up before the Court, respondents 5 and 6 appear to have been appointed as joint receivers.
The Bank appeared through its counsel Mr. Majumdar and the joint receivers appeared forth themselves as well as for their respective clients, namely, 1st respondent company and the 2nd respondent State of West Bengal.
Mr. Majumder, learned advocate for the Bank undertook to the Court to comply with the order dated May 24, 1979, to pay the amount therein mentioned to M/s Maharia & Co. Advocate on record for the appellant.
The court directed that on such payment being made the Bank shall be absolved from all the liability in respect of the said amount.
The Court specifically noted that in view of the undertaking given by the learned advocate on behalf of the 454 Manager of the Bank, the Court was not inclined to pass any order in respect of the contempt application and the application for taking action in contempt was accordingly disposed of.
At this stage.
Mr. A.K. Dutta appearing for the Ist respondent company prayed for stay of a portion of the order of the Court which prayer was specifically refused observing that as no fresh orders have been passed on that day affecting the interests of the said Company, no question of granting stay of a portion of the order arises.
The Court specifically directed that all the parties and particularly the Manager of the Bank should act on the signed copy of the minutes.
It appears that the solemn undertaking given by the Bank was not acted upon.
Probably soon thereafter some interim orders were obtained as would transpire from the order of Mrs. Padma Khastgir, J. dated March 7, 1980.
When the matter came up on March 7, 1980, the court observed that there will by no order on the applications before it save and except that the receiver will hold the balance sum of Rs. 4,19,697.06p till further order of the Court.
The Court also declined to grant prayer for discharge of the receiver S.K. Dutta, the 3rd respondent, because notice of the application was not served upon him.
This observation would, however, establish that till March 7, 1980, the 3rd respondent was not discharged as a receiver though from the recitals in the order dated June 7, 1979, it appears that by that date A.K. Dutta and R.C. Deb were functioning as joint receivers.
In this order it was distinctly made clear that except what is stated the specifically in the order all interim orders were vacated.
However, the Court at the instance of joint receivers stayed the portion of the order dated March 7, 1980, for a period of a fortnight.
To clarify the position it may be mentioned that when the Court directed that balance of Rs. 4,19,697.06 will be held by the receiver it would imply that would be the balance after payment of the amount directed to be paid to the appellant.
Specifically this order has the effect of confirming the earlier order dated May 24, 1970, to pay the decretal amount to the appellant.
If appears that thereafter three appeals came to be filed before the Division Bench of the Calcutta High Court.
Appeal No. 95/80 and Appeal No. 94/80 were preferred by the Ist respondent company.
Appeal No. 122/80 was preferred by the 2nd respondent State of West Bengal.
These three appeals were preferred against the order dated March 7, 1980, made by Mrs. Padma Khastgir, J.
In the two appeals preferred by the Ist respondent company a Division Bench of the Calcutta High Court by its order dated 455 March 27, 1980, granted ad interim stay as under: "The Joint Receivers, R.C. Deb and A.K. Dutta are directed not to part with any money lying deposited under the fixed deposit receipt No. 1002/2529 in the Grindlays Bank.
There will be an order directing the Grindlays Bank Ltd., of 29, Netaji Subhash Road not to disburse any amount in respect of fixed deposit No. 1002 2539 standing in the name of S.K. Dutta, the fixed deposit receipt whereof is Lying deposited with the present joint receivers R.C. Deb and A.K.Dutta .
Order of injunction restraining Jethabhai Khatau and Co. from obtaining any payment out of the moneys lying in the Grindlays Bank and held by the joint receivers or receiver.
" This interim order was confirmed by the Division Bench by its order dated September, 9, 1980.
Hence these three appeals by special leave.
Frankly, this Court ordinarily does not interfere with interim orders unless and until manifest injustice convulsively shakes it.
Even then, with our usual response of reluctance to undertake to examine interim orders, only a notice to show cause why special leave should not be granted and the interim stay application not be considered, was issued to the respondents.
After notices were served and counter affidavits and rejoinder affidavits were filed, this matter came before us about four weeks back, our hands off attitude to interim orders manifested itself when we adjourned the matter for four weeks indicating to the parties, especially the respondents who are appellants before the High Court, to take executive steps to get their appeals placed on the cause list for hearing and to move for expeditious disposal of the same.
We also declined to grant any interim relief.
We so adjourned the matter in the fond hope that we may hang on to our tenuous view that ordinarily we would not undertake to deal with interim orders.
Our hope has proved a mirage.
When this matter was listed before us on April 3, 1981, Mr. Kackkar, learned counsel for the Appellant stated that almost within the dying embers of the time granted by this Court an attempt was 456 made by the respondents to get their matter listed in the High Court and the only order that the court has made is that the appeals be added to the cause list of the Division Bench and it would be anybody 's guess when this last added matter would reach hearing.
Having no alternative left open to us, we have heard the matter.
As the appeals are pending before the Division Bench of the Calcutta High Court and are to be heard on merits, we would make every manageable human effort to avoid any expression of opinion which may even remotely interfere with judicious adjudication of the issues before the Division Bench.
However, we make it clear that even if there is any express or implied opinion discernible in this order, the same has to be wholly ignored by the High Court while disposing of the appeals on merits.
With this extra caution we proceed to dispose of these appeals.
As every stage of the proceeding has been neatly delineated by us with the orders of the Court referred to in details, the permissible inferences may alone be set out.
What is the injudicious situation which may bring disrepute to judicial process, stares in the face.
The consent decree under which appellant was entitled to recover Rs. 2,85,000 with interest, at the rate of 6% per annum from the date of the decree till realisation was made by the Court on January 6, 1970.
The decree without being satisfied in its minutest part has collected dust for 11 years.
And at present who is impeding the execution of the decree ? It is the 1st respondent company which has been a party to the consent decree and which decree has become final and unassailable.
There is no proceeding at precent questioning the correctness, validity or legality of the decree or its binding character on the 1st respondent company.
It is again incontrovertible that the judgment debtor Ist respondent company has in its fixed deposit with the 4th respondent Bank a sum of Rs. 8,40,000.
That his amount is of the ownership of the judgment debtor is not in dispute.
3rd respondent S.K. Dutta was once a receiver.
Respondents say that he has been removed and respondents 5 and 6 who are respectively the Advocates of the Ist respondent company and the 2nd respondent State of West Bengal claim to be appointed as joint receivers.
The date of appointment is not made clear but the order dated March 7, 1980 (Annexure 'J ') by Mrs. Padma Khastgir, J. leaves no room for doubt that till that date 3rd respondent S.K. Dutta was not discharged as receiver.
457 The High Court on a petition of the appellant levied attachment under order 21 Rule 52 C.P.C.
On the amount Lying in fixed deposit account with 4th respondent Bank in the name of 3rd respondent S.K.Dutta as receiver of the first respondent company by order dated April 5, 1978.
This attachment order was levied by the Master of the Court and the interim attachment was confirmed.
Admittedly these orders were not challenged.
Sabyasachi Mukerjee, J. by his order dated May 4, 1978, directed 3rd respondent S.K. Dutta to pay the amount of Rs. 4,20,702.94 P. Out of the amount Lying in fixed deposit receipt No. 1002 2539 with the fourth respondent Bank to the appellant in satisfaction of the decree.
This order may appear to have become final as not having been questioned by any one.
Manoj Kumar Mukherjee, J. by his order dated May 24, 1979, directed 3rd respondent S.K.Dutta, receiver of the Ist respondent company to pay Rs. 4,20,702.94 p.
Out of the fixed deposit account held by him as receiver of the Ist respondent company to the appellant and a consequential order was made directing the Bank to pay the amount set out in the order to the appellant.
This order dated May 24, 1979, may appear to have become final as it appears not to have been questioned, challenged or appealed by any one.
Failure to comply with the court 's mandatory direction led the appellant to file a petition for contempt.
The alleged contemners impleaded were Ist respondent company and the 4th respondent Bank.
When this petition for taking action in contempt came up before Manoj Kumar Mukherjee, J. there appeared on the scene one Mr. Majumdar, learned counsel for the 4th respondent Bank as well as the two joint receivers functioning in dual capacity as joint of receivers as well as learned counsel for the respective clients, namely, Ist respondent company and the 2nd respondent State of West Bengal.
At the hearing of this motion for taking action for contempt, Mr. Majumdar learned counsel for the 4th respondent unreservedly agreed to comply with the order of the Court on May 24, 1979, which means that he agreed and undertook to pay the amount of Rs. 4,20,702.94 out of the fixed deposit account in the name of 3rd respondent S.K. Dutta, receiver of the Ist respondent company.
It is because the Bank agreed unreservedly and unconditionally to pay up the amount that the motion for taking action in contempt was discharged by the Court.
No action was sought to be taken against the joint receivers who had interposed themselves in the meantime.
Therefore, the court declined to accede to their request to stay a 458 portion of the order.
The order dated June 7, 1979, is not a fresh order on merits.
It was merely an implementation of the order dated May 24, 1979, which may appear to have become final and binding.
Yet the 1st respondent company and the 2nd respondent State of West Bengal took no further action and surprisingly the Bank also joined hands with them by not paying the amount till March 7, 1980.
Maybe, there may be some interim orders.
We are not made knowledgeable about the nature and character of those interim orders save and except what has been recited in the order dated March 7, 1980, of Mrs. Padma Khastgir, J. However, there seems to be some apparent collusion between the company on one hand and the joint receivers in not complying with the court 's order dated May 24, 1979, even though action for contempt was avoided by giving an unconditional undertaking to carry out that order.
The three appeals were preferred against the order dated March 7, 1980.
That order has nothing to do with order dated May 24, 1979, or the order dated June 7, 1979.
At any rate, the order dated May 24, 1979, may appear to have become final.
Would it be appropriate in such circumstances to grant an interim stay of the portion of an order which may appear to have become final in an appeal against an altogether different order? Mr. Shankar Ghose, learned counsel for the respondent wanted us to take note of various allegations against the 3rd respondent, the receiver, the fact that he was removed, the fact that he was colluding with the appellant and that he was negligent as also that he was discharged at some stage of the proceedings.
At this stage, these contentions in our opinion are not very relevant.
Maybe, there is merit in these contentions.
Maybe, the Division Bench hearing the appeals by the Ist and 2nd respondent will examine these contentions on merits.
The only live issue is whether would it be fair while granting stay of the order dated March 7, 1980 to effectively stay the order dated March 24,1979, which appears not to be under appeal though its validity may be questioned in the course of hearing of the appeal? If that be so, could the Court overlook attempt of the Ist and 2nd respondents to circumvent the order by obtaining an interim stay in such manner that an order not under appeal gets frozen '? It is, therefore, that we propose to interfere with the interim order made by the Division Bench of the Calcutta High Court on September 9, 1980, confirming the ad interim order dated March 7, 1980, to a limited extent so that an impression that the court 's process can be lightly trifled with, may be avoided.
459 Under the circumstances the proper thing to do would be to set aside the interim stay order dated March 27, 1980, as also the order dated September 9, 1980, confirming the interim order but in order to ensure the resultant justice as we are interfering with an interim order, we consider it proper to give certain directions, while restoring status quo ante in the event the appeals filed by respondents 1 and 2 are allowed or any specific positive direction is given by the court in this behalf.
We accordingly allow these appeals and set aside the orders made by the Division Bench on March 27, 1980 and September 9, 1980.
The result would be that the order dated May 4, 1978, by Sabyasachi Mukherjee, J. and order dated May 24, 1978, made by Manoj Kumar Mukherjee, J. as also the undertaking given by the manager of the 4th respondent Bank through his learned counsel Shri Majumdar before Manoj Kumar Mukherjee, J. On June 7, 1979, would be revived and would be effective and will have to be implemented.
In pursuance to the aforementioned two orders, the 4th respondent Bank will have to pay Rs. 4,20,702.94 p. to the decree holder appellant towards the decretal amount.
On receipt of the amount the appellant shall pass a receipt acknowledging receipt of the amount and to the extent of the payment of the amount herein indicated the liability of the 4th respondent Bank to the Ist respondent company or anyone claiming on its behalf or the 3rd respondent receiver shall stand discharged.
Before the amount is paid, the appellant shall give security to the satisfaction of the High Court and also an undertaking on affidavit to the Division Bench of the Calcutta High Court before which the appeals preferred by the Ist and 2nd respondents are pending that in the event the appeals are allowed which makes it consequently necessary for the appellant to repay the amount received from the 4th respondent Bank in payment of the decretal amount, the appellant shall deposit the said amount with the Calcutta High Court within one month from the date of the order of the appellate Bench.
The appeals will stand disposed of as herein indicated with no order as to cost.
N.V.K. Appeals allowed.

summary/full:
The appellant filed a suit for recovery of certain amounts due from the first respondent company.
By the time the suit came up for hearing the first respondent company was superseded and an Administrator was appointed.
The suit was compromised and a consent decree was passed, the company being held liable and directed to make payment of Rs. 2.85 lakhs with interest at 6% from the date of the decree.
The first respondent company received a sum of about Rs. 15 lakhs from the Custodian of Enemy Property as compensation in respect of certain Cotton mills owned by it.
The third respondent was appointed a receiver in respect of this amount and he deposited a sum of Rs. 8 lakhs of the compensation amount into a fixed deposit account with a Bank.
The decretal amount having become due and payable the appellant by an order dated April 12, 1978 obtained an interim attachment of the money in the fixed deposit account of the bank, which was confirmed by order dated April 24, 1978 on May 4, 1978 upon a petition by the appellant, the Court directed the receiver, 3rd respondent to pay the decretal amount to the appellant out of the amount in the fixed deposit account of the judgment debtor with the Bank.
As this order was not implemented, the appellant again moved the Court and by its order dated the May 24.
1978 the Court directed the receiver to pay the amount to the decree holder and the Bank, the keeper of the fixed deposit account of the receiver was also put under an obligation not to raise any objection on the receiver withdrawing the money and paying the same to the decree holder.
These directions not being obeyed, the appellant moved the Court for holding the third respondent receiver and the fourth respondent Bank in contempt and for passing appropriate orders for punishing them for contempt.
Respondents 5 and 6 were in the meanwhile appointed as joint receivers.
A solemn undertaking was given by the Bank to the Court that the decretal amount would be paid.
In view of the undertaking the Court did not pass any orders on the contempt application.
On March 7, 1980 the Court declined to grant the prayer for discharge of the receiver 3rd respondent and directed that the balance after payment of the decretal amount in the fixed deposit account will be held by the receiver.
The Court however at the instance of the joint receivers Respondents 5 and 6 stayed the order for a fortnight.
450 Three appeals were filed against the order dated March 7, 1980.
Two appeals were preferred by the Ist respondent company and one appeal was preferred by 2nd respondent, State of West Bengal.
In the appeals preferred by the Ist respondent company the High Court by its order dated March 27, 1980 granted ad interim stay in the matter, by directing that the Bank would not disburse any amount in respect of the fixed deposit account and by issuing an injunction restraining the appellant from obtaining any payment.
Allowing the appeals to this Court, ^ HELD: The order made by the Division Bench on March 27, 1983 and continued on September 9, 1980 are set aside.
The order dated May 4, 1978 and May 24, 1979 as also the undertaking given by the Manager of the 4th respondent Bank through its Counsel on June 7, 1979 would be revived and would be effective and will have to be implemented.
The 4th Respondent Bank will pay the decretal amount to the appellant, the appellant shall pass a receipt acknowledging receipt and the liability of the 4th Respondent company to the 3rd Respondent receiver shall thereupon stand discharged.
Before the amount is paid, the appellant shall give security to the satisfaction of the High Court and also an undertaking on affidavit that in the event of the appeals being allowed, the appellant shall deposit the said amount with the High Court within one month from the date of the order of the appellate Bench.
[459 C F] 2.
This Court ordinarily does not interfere with interim orders unless and until manifest injustice convulsively shakes it.
[455 E] In the instant case the interim order made by the Division Bench on September 9, 1980 confirming the ad interim order dated March 7, 1980 has to be interfered to a limited extent to avoid the impression that the Court 's process can be lightly trifled with.
[458 H] 3.
Failure to comply with the Court 's mandatory directions led the appellant to file a petition for contempt.
The alleged contemners impleaded were Ist respondent company and the 4th respondent Bank.
At the hearing, counsel for the 4th respondent unreservedly agreed to comply with the order of the Court.
It was because the Bank unreservedly and unconditionally agreed and undertook to pay up the amount that the motion for taking action in contempt was discharged by the Court.
[457 E, H] 4.
The order dated June 7,1979 is not a fresh order on merits.
It was merely an implementation of the order dated May 24, 1979 which appears to have become final and binding.
[158 A] 5.
The three appeals were preferred against the order dated March 7, 1980.
That order had nothing to do with the order dated May 24, 1979 or the order dated June 7, 1979.
At any rate, the order dated May 24, 1979 appears to have become final.
[458 D]