Cont.App(C) No.7 of 2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ## **`&`** ``` THE HONOURABLE MRS.JUSTICE SOPHY THOMAS ``` ``` TUESDAY, THE 31[ST] DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945 CON.APP(C) NO. 7 OF 2023 ``` ``` ARISING OUT OF THE ORDER DATED 27.09.2023 IN CON.CASE(C)NO. 1008 OF 2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANTS/RESPONDENTS:`** - **`1 SRI SUBHEESH KRISHANAN, AGED 41 YEARS SECERATARY, NANMINDA RURAL CO-OPERATIVE HOUSING SOCIETY LTD.NO.D 1988, NANMINDA P.O, KOZHIKODE-673 613, RESIDING AT KUTHUPARACKAL HOUSE, PO KARUMALA, KOZHIKODE, PIN - 673612`** - **`2 SRI K K VASU NAIR, AGED 72 YEARS, PRESIDENT, NANMINDA RURAL CO-OPERATIVE HOUSING SOCIETY LTD NO.D 1988, NANMINDA P.O, KOZHIKODE-673 613, RESIDING AT KUTTICHATHANKANDI HOUSE, NANMINDA P.O KOZHKODE, PIN - 673613`** ``` BY ADV P.C.SASIDHARAN ``` ## **`RESPONDENT/PETITIONER:`** ``` K.M.RAVI, S/O. RAGHAVAN NAIR, THALIYACHA HOUSE, NANMINDA, KOZHIKODE, PIN – 673613 ``` ``` R BY SR.ADV.SRI.P.RAVINDRAN ADV.SMT.LAKSHMI RAMDAS ``` ``` THIS CONTEMPT APPEALS (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2023 AND THE COURT ON 31.10.2023 DELIVERED THE FOLLOWING: ``` 2 Cont.Appeal (C) No.7 of 2023 ## **JUDGMENT** ## Anil K. Narendran, J. The appellants are the respondents in Cont. Case (C)No. 1008 of 2023 filed by the respondent herein, invoking the provisions under Sections 11 and 12 of the Contempt of Courts Act, 1971, alleging gross, willful and continuing civil contempt of Annexure A3 judgment of the learned Single Judge dated 18.01.2023 in W.P.(C)No.2118 of 2019, whereby that writ petition was allowed to the limited extent of clarifying that the Kerala Co-operative Tribunal in Appeal No.48 of 2014 has not set aside the award of the Co-operative Arbitration Court (Northern), Kozhikode in ARC No.139 of 2011, but has confirmed it. 2. The Cont. Case was filed on 22.05.2023. When that matter came up for admission, it was ordered to be listed on 26.05.2023 for getting instructions by the learned counsel for the respondents therein. Challenging Annexure A3 judgment in W.P.(C)No.2118 of 2019 and the connected matter, i.e., W.P.(C)No.4698 of 2018, the respondents therein filed W.A.Nos.1069 of 2023 and 1070 of 2023. Those appeals were dismissed as withdrawn, by the judgment dated 12.06.2023, giving them liberty to move Review Petitions before the learned Single Judge, seeking review of Annexure A3 judgment in 3 Cont.Appeal (C) No.7 of 2023 W.P.(C)No.2118 of 2019, as there was an omission to record findings relating to the validity of the inquiry. In the judgment in W.A.No.1069 of 2023 and 1070 of 2023, the Division Bench reserved the liberty of the appellants to challenge the findings already made, if so warranted. 3. Seeking review of Annexure A3 judgment in W.P.(C)Nos.2118 of 2019 and 4698 of 2018, the appellants herein filed R.P.Nos.645 of 2023 and 647 of 2023. Those Review Petitions were closed by the order dated 26.07.2023, observing that the manner in which the directions of this Court or that of the Appellate Tribunal are to be interpreted by the parties cannot be a matter for review. Challenging the order in R.P.Nos.645 of 2023 and 647 of 2023, they filed W.A.Nos.1612 of 2023 and 1615 of 2023 on 18.08.2023. Those Writ Appeals ended in dismissal by the judgment dated 03.10.2023. 4. In the Cont. Case, the appellants herein filed an affidavit dated 03.08.2023, wherein it was contended that going by the provisions in the Kerala Co-operative Societies Act, 1969, the award passed by the Co-operative Arbitration Court under Section 70 is one to be executed as a decree in a civil court, that too on a certificate obtained. For executing such a decree no contempt of court will lie. Further, there is nothing to be 4 Cont.Appeal (C) No.7 of 2023 complied with by the Society as well, in terms of Annexure A3 judgment in W.P.(C)No.2118 of 2019. 5. On 14.06.2023, when the Cont. Case came up for consideration, the learned Single Judge ordered as follows; “If the directions in the judgment are not complied within the next posting date, the respondents shall remain present in person to explain why.” 6. On 17.06.2023, the respondents therein filed I.A.No.1 of 2023 seeking an order to recall the order dated 14.06.2023. On 20.06.2023, it was submitted before the learned Single Judge that a review petition has been filed against Annexure A3 judgment in W.P.(C)No.2118 of 2019. By the order dated 20.06.2023, while posting the Cont. Case to 30.06.2023, the learned Single Judge directed the respondents therein to be present in court, if no action is taken. Thereafter, the Cont. Case was listed before the learned Single Judge on 11.07.2023, 13.07.2023, 24.07.2023 and 26.07.2023. On 26.07.2023, R.P.Nos.645 of 2023 and 647 of 2023 filed by the respondents in Cont. Case were dismissed and the contempt case was ordered to be listed on 12.09.2023, for compliance. Thereafter, the matter was listed on 27.09.2023, on which date the learned Single Judge passed the impugned order, which reads thus; 5 Cont.Appeal (C) No.7 of 2023 “In spite of several opportunities given, the judgment remains unimplemented. The respondents, therefore, shall remain present before this Court to answer the charges on 04.10.2023, unless every direction in the judgment is duly complied with them.” 7. Challenging the said order of the learned Single Judge, the appellants filed this Cont. Appeal on 01.10.2023. It is after the filing of this Cont. Appeal, that W.A.Nos.1612 of 2023 and 1615 of 2023 filed by them, against the order in R.P.Nos.645 of 2023 and 647 of 2023 were dismissed by the learned Single Judge, vide the judgment dated 03.10.2023. 8. On 09.10.2023, the learned counsel for the appellants and the learned Senior Counsel for the respondent sought time to address arguments taking note of the law laid down by a Division Bench of this Court in **Anilkumar v. Premkumar [2021 (1) KLT SN 35 : 2020 KHC 384]** . 9. On 12.10.2023, we heard detailed arguments of the learned counsel for the appellants and the learned Senior Counsel for the respondent, at length. 10. The learned counsel for the appellants would contend that the observations/directions issued by the learned Single Judge, on the face of it, are unsustainable and beyond the powers and jurisdiction of a Judge exercising powers under the 6 Cont.Appeal (C) No.7 of 2023 Contempt of Courts Act. No preliminary hearing regarding the maintainability of the Cont. Case or the charges in the memo of charges was conducted by the learned Single Judge. The prima facie satisfaction is one that has to be arrived at by the learned Single Judge before directing the alleged contemnor to appear in person to answer the charges. If a prima facie case is made out, definite charges should be made and it is only with reference to those charges, the alleged contemnor can be called upon to answer. In the case on hand, the contempt case was filed on 22.05.2023, when writ appeals filed by the appellants were pending before the Division Bench. Those appeals were later disposed of giving liberty to the appellants to move the learned Single Judge with review petition. The review petitions were dismissed on 26.07.2023. Challenging the order in the review petitions, W.A.Nos.1612 of 2023 and 1615 of 2023 were filed, which ended in dismissal by the judgment dated 03.10.2023. The learned counsel for the appellants would raise a contention that the direction contained in Annexure A3 judgment in W.P.(C)No.2118 of 2019 is not one which can be implemented in contempt jurisdiction, since the said judgment is only clarificatory in nature. The learned counsel would also rely on the provisions under Section 76 of the Kerala Co-operative Societies 7 Cont.Appeal (C) No.7 of 2023 Act, 1969 and Rule 72 of the Kerala Co-operative Societies Rules, 1969. 11. On the other hand, the learned Senior Counsel for the respondent would contend that Annexure A2 order dated 27.09.2023 in Cont. Case (C)No.1008 of 2023 cannot be challenged in a Contempt Appeal, invoking the provisions under Section 19(1)(a) of the Contempt of Courts Act, and as such, the present appeal is liable to be dismissed as not maintainable. Annexure A3 judgment dated 18.01.2023 in W.P.(C)No.2118 of 2019 is not merely clarificatory in nature and the award passed by the Co-operative Arbitration Court in ARC No.139 of 2011 is merged with the said judgment, and as such the respondent is legally entitled to invoke contempt jurisdiction of this Court, under Sections 11 and 12 of the Contempt of Courts Act, alleging commission of gross, willful and continuing civil contempt of the said judgment. 12. The learned counsel for the appellants and also the learned Senior Counsel for the respondent advanced arguments on the maintainability of the Cont. Case pointing out the provisions under the Kerala Co-operative Societies Act and the Rules made thereunder, the question of merger, etc. We do not propose to deal with those contentions in this Cont. Appeal, 8 Cont.Appeal (C) No.7 of 2023 considering the limited scope of this appeal, since the challenge is against the order dated 27.09.2023 of the learned Single Judge, whereby the appellants, the alleged contemnors are directed to be present in Court on 04.10.2023 to answer the charges unless every direction in the judgment is duly complied with. It is for the appellants to raise the question of maintainability of the Cont. Case, before the learned Single Judge. 13. This Cont. Appeal is one filed invoking the provisions under Section 19(1)(a) of the Contempt of Courts Act. Section 19 of the Act deals with appeals. As per sub-section (1) of Section 19, an appeal shall lie as of right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt. In view of the provisions of clause (a) of sub-section (1) of Section 19, such an appeal shall lie where the order or decision is that of a Single Judge, to a Bench of not less than two Judges of the Court. 14. In **Anil Kumar T.R. and others v. Premkumar V.R** **[2021 (1) KLT SN 32 (C.No.35) : 2020 KHC 384]** a Division Bench of this Court held that an appeal under Section 19 of the Contempt of Courts Act is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to 9 Cont.Appeal (C) No.7 of 2023 punish for contempt, i.e., an order imposing punishment for contempt. Neither an order declining to initiate proceedings for contempt nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor is appealable under Section 19 of the Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. In a proceeding for contempt, the High Court can decide whether any contempt of Court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under Section 19 of the Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in 10 Cont.Appeal (C) No.7 of 2023 contempt proceedings, the aggrieved person is not without - remedy. Such an order is open to challenge in an intra court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases). The exercise of jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt and if the order is passed not discharging the rule issued in contempt proceedings, it would be an order or decision in the exercise of its jurisdiction to punish for contempt, against which an appeal would be maintainable. The decision of the High Court to reject the unconditional apology and proceed further was an order or decision to proceed to punish the contemnor. Hence, such a decision or order is appealable. 15. The decision of the Division Bench in **Anil Kumar** **T.R. [2021 (1) KLT SN 32 (C.No.35) : 2020 KHC 384]** is one rendered after referring to the law laid down by the Apex Court in **Midanpore Peoples’ Co-operative Bank Ltd. v. Chunilal Nanda [(2006) 5 SCC 399]** , a decision relied on by the learned Senior Counsel for the respondent and also the learned counsel for the appellants. ## 16. In **V.M. Manohar Prasad v. N. Ratnam Raju** 11 Cont.Appeal (C) No.7 of 2023 **[(2004) 13 SCC 610]** , a decision relied on by the learned counsel for the appellants, the Apex Court, in the context of Section 19 of the Contempt of Courts Act, held that if a direction given by a court is without jurisdiction, against such orders an appeal would lie to the court normally exercising the appellate jurisdiction. 17. In the instant case, by the impugned order dated 27.09.2023, the learned Single Judge ordered that the appellants herein shall remain present before the Court on 04.10.2023 to answer the charges, unless every direction in the judgment is duly complied with by them. The said order cannot be treated as an order or decision of the learned Single Judge, passed in the exercise of his jurisdiction to punish for contempt or even to proceed to punish for contempt, against which an appeal can be filed under Section 19 of the Act. In the affidavit filed in Cont. Case (C)No.1008 of 2023, the appellants have already raised the question of maintainability of that Cont. Case. In such circumstances, this Cont. Appeal fails on the question of maintainability and the same is accordingly dismissed; however leaving open the rival contentions raised on the question of maintainability of Cont. Case (C)No.1008 of 2023. Similarly, the contention of the appellants that the 12 Cont.Appeal (C) No.7 of 2023 direction for appearance in the impugned order is one issued without jurisdiction is also left open, since in view of the decision of the Apex Court in **V.M. Manohar Prasad [(2004) 13 SCC 610]** , such a contention, if legally available, can be raised only in an intra-court appeal and not in an appeal under Section 19 of the Contempt of Courts Act. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** AV 13 Cont.Appeal (C) No.7 of 2023 ## **`APPENDIX OF CON.APP(C) 7/2023`** |**`PETITIONER ANNEXURES`**|| |---|---| |**`ANNEXURE A1`**|**`TRUE COPY OF THE CON CASE NO 1008`**| |**`ANNEXURE A2`**|**`CERTIFIED COPY OF THE ORDER DATED`**| ||**`27.09.2023 IN CON CASE NO 1008 OF 2023`**| |**`ANNEXURE A3`**|**`TRUE COPY OF THE JUDGMENT IN WP (C) 2118`**| ||**`OF 2023 DATED 18.01.2023`**| |**`ANNEXURE A4`**|**`COPY OF THE AWARD IN ARC NO.139 OF 2011`**| |**`ANNEXURE A5`**|**`TRUE COPY OF THE ERRATUM AWARD IN ARC NO`**| ||**`139 OF 2011`**| |**`ANNEXURE A6`**|**`TRUE COPY OF THE ORDER OF THE TRIBUNAL`**| ||**`DATED 30.12.2014`**| |**`ANNEXURE A7`**|**`TRUE COPY OF THE JUDGMENT IN WA 1069 OF`**| ||**`2023`**| |**`ANNEXURE A8`**|**`TRUE COPY OF THE JUDGMENT IN RP 645 OF`**| ||**`2023 AND RP 647 OF 2023`**| |**`ANNEXURE A9`**|**`TRUE COPY OF THE COUNTER AFFIDAVIT FILED`**| ||**`BY THE APPELLANTS IN CON CASE 1008 OF 2023`**| |**`ANNEXURE A10`**|**`TRUE COPY OF THE ORDER IN CON.CASE 1008 OF`**| ||**`2023 DATED 20.06.2023`**|