Cont.Case (C).No.681/2018 in W.P(C).No.30651/2017

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 19TH DAY OF MARCH 2019/28TH PHALGUNA, 1940** **Con.Case(C).No.681 OF 2018 IN W.P(C).NO.30651/2017** **ARISING OUT OF THE JUDGMENT DATED 26-10-2017IN W.P.(C).NO.30651/2017** ## **PETITIONER/PETITIONER IN W.P(C):** **RATHEESH M.N AGED 39 YEARS, S/O. NARAYANAN, MALIYIL, CHIRAYAM, ALANGAD, ALUVA, ERNAKULAM DISTRICT.** **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENTS/RESPONDENTS 3 & 4 IN WPC:** - **1 M.P.DINESH AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, COMMISSIONER OF POLICE, KOCHI, PIN-682001.** - **2 MR. JAYAKRISHNAN** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, STATION HOUSE OFFICER, KALAMASSERY POLICE STATION, KALAMASSERY, ERNAKULAM-683104.** **3 *M.V.SHAJI S/O LATE VELAYUDHAN, MANATHUPADATH HOUSE,PATHADIPALAM, SOUTH KALAMASSERY, KOCHI-682033** **(*ADDL R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 08/11/2018 IN COC 681/18)** - **4 **SMT.PREETHA SHAJI W/O M.V.SHAJI,MANATHUPADATH HOUSE,PATHADIPALAM,SOUTH KALAMASSERY,KOCHI-682033** **(**ADDL R4 IS SUO MOTU IMPLEADED AS PER ORDER DTD. 14/2/19 IN COCNO.681/18)** **BY ADV.SRI.K.V.SOHAN, STATE ATTORNEY BY ADV.SRI.TITUS MANI** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Cont.Case (C).No.681/2018 : 2 :** ## **J U D G M E N T** ## **A.K. Jayasankaran Nambiar, J.** This contempt of court case is preferred by Sri. Ratheesh M.N., who was an auction purchaser of an extent of property, at an auction conducted by the Bank on 24.2.2014. The property in question belonged to the 3[rd] respondent Sri. M.V.Shaji, who had stood security to a loan availed by one A.R.Sajan, and had mortgaged the property in question to the Bank as security, for the advancement of the loan amount to the borrower. The proceedings for recovery of the loan amount advanced, commenced before the civil court and culminated with the order of the Debts Recovery Tribunal [DRT] that ordered for a sale of the property, through auction. After the auction, when the auction purchaser sought delivery of possession of the property from the Bank, the Recovery Officer of the DRT passed an order appointing an Advocate Commissioner to take possession of the property so as to give vacant possession of the same to the auction purchaser. 2. The attempts by the Advocate Commissioner to take possession of the property however met with stiff resistance from the 3[rd] and 4[th] respondents herein, who were aided by other persons in the locality. This led the auction purchaser to approach this Court through Writ Petition No.30651/2017 seeking for police protection to enable the Advocate Commissioner to take possession of the **Cont.Case (C).No.681/2018 : 3 :** property. 3. By an order dated 26.10.2017, a Division Bench of this court directed police protection to be granted to the Advocate Commissioner for executing the order of the Recovery Officer of the DRT. Although many attempts were made by the police authorities to implement the directions of this Court, the said attempts were rendered futile by the vehement opposition of respondents 3 and 4, who along with their supporters caused a tense and potentially volatile situation to prevail in the area so that the police authorities could not carry out their task of implementing the directions issued from this Court. 4. The above stalemate continued till O.P (DRT).No.136/2018 was filed by the 3[rd] respondent challenging the orders passed by the DRT, to sell the property in auction and thereafter appointing an Advocate Commissioner to obtain vacant possession of the auctioned property. When the O.P (DRT) came up for admission before us, we insisted that for us to exercise our discretionary jurisdiction to entertain the O.P (DRT) on merits, the 3[rd] respondent would have to purge himself of the contemptuous conduct by agreeing to vacate the property in question pending disposal of the O.P (DRT). The 3[rd] respondent consented to the said arrangement and accordingly, vacant possession of the property was secured by this Court, during the pendency of the O.P (DRT). **Cont.Case (C).No.681/2018 : 4 :** 5. The O.P (DRT) was subsequently allowed by us vide judgment dated wherein, we found as follows: “i. The sale that took place on 24.02.2014, having breached the condition in Rule 68B of the Second Schedule to the IT Act requiring it to take place within three years from the date of the recovery certificate, is set aside as illegal and void. ii. As a consequence to the said declaration, the Recovery certificate issued by the Debt Recovery Tribunal on 09.09.2005, the Sale proclamation dated 28.10.2013 as also the order dated 22.5.2015 of the Recovery Officer, DRT [Ext.P5], by which an Advocate Commissioner was appointed for the purposes of executing the final order dated 10.6.2005 of the DRT, are also set aside. iii. The mortgagor petitioner in O.P.(DRT).No.136 of 2018 shall pay an amount of Rs.43,51,362.85 to the bank in order to redeem the mortgaged property. He shall, in addition to the said amount, pay an amount of Rs.1,89,000/- to the auction purchaser, petitioner in W.P.(C) No.30651 of 2017. The said payments shall be effected on or before 15.3.2019. On the said payments being made, the mortgagor shall be entitled to return of the title deeds in respect of the mortgaged property from the bank and on receipt of the same, he shall approach the village officer, with whom we had entrusted the task of securing vacant possession of the mortgaged property, for obtaining restoration of possession of the property. iv. If the petitioner in O.P.(DRT).No.136 of 2018 defaults in payment of the aforesaid amounts, within the time granted, the bank will be free to proceed with the recovery steps based on the Final Order dated 10.06.2005 of the Debt Recovery Tribunal in O.A.No.6 of 2005. In that event, the bank will be at liberty to seek a fresh recovery certificate from the Recovery Officer of the Debt Recovery Tribunal. The bank will also, in that event, be entitled to have vacant possession of the mortgaged property and the village officer shall do the needful to ensure that. v. As for the auction purchaser, he shall be entitled to a return of the purchase money paid by him for the property at the sale held on 24.04.2014. He shall also be entitled to the bank rate of interest, as applicable to savings accounts, for the said amount for the period from the date of payment of the purchase price to **Cont.Case (C).No.681/2018 : 5 :** the date of refund to him of the said sum by the bank. Further, in the event of the petitioner in O.P.(DRT).No.136 of 2018 not paying him the amount of Rs.1,89,000/- within the time granted in this judgment, he is permitted to recover the said amount from the bank which, in turn, shall add the said sum to the amounts outstanding from the mortgagor and treat it as forming part of the decree amount recoverable from the mortgagor.” 6. Pursuant to our judgment in the O.P (DRT), we are given to understand that the 3[rd] respondent has already effected the payments that were directed in the judgment to be made to the Bank and the auction purchaser. Steps are also stated to be afoot to restore possession of the property to the 3[rd] respondent. 7. We have narrated the history of these proceedings only to demonstrate that the actions of the 3[rd] and 4[th] respondents herein in obstructing the implementation of the directions issued from this court were wholly unjustified, more so when, they had not chosen to take any legal proceedings to challenge the basic orders passed by the DRT that led to the consequential directions issued from this Court. We had taken specific note of the said wilful obstruction caused by the said respondents while finding prima facie contemptuous conduct on their part in these proceedings. It is in respect of the said acts of defiance committed by the 3[rd] and 4[th] respondents that these proceedings are being continued against them. 8. The 3[rd] and 4[th] respondents having filed an affidavit admitting the **Cont.Case (C).No.681/2018 : 6 :** contempt and offering unconditional apology for the same, the mantle now falls upon this Court to consider whether or not they ought to be punished for their conduct and if so, in what manner? 9. We might at the very outset clarify that we are not persuaded in these proceedings to believe that the majesty of this Court has in any way been affected by the actions of the 3[rd] and 4[th] respondents in defying the orders of this Court and obstructing the lawful implementation of the same. This court is not a fragile flower that will wither in the heat of such confrontation. We are concerned, however, with the message that would carry to the society at large, if such contumacious conduct of the respondents is left unpunished. The conduct of the respondents should not pave the way for others to believe that defying orders of this court is the only way to get the court to review its decisions. A lawful order can be set aside only by another lawful order passed by a court of competent jurisdiction. Obedience to lawful orders passed by a Court in our country cannot be at the discretion of the person to whom it is directed, nor can such a person question the correctness of such orders except through legal proceedings. The conduct of the respondents, in obstructing the implementation of lawful directions issued from this court, prior to their filing the O.P (DRT), has to be deprecated and it is for this reason that we have found the 3[rd] and 4[th] respondents guilty of Contempt of Court. **Cont.Case (C).No.681/2018 : 7 :** 10. As regards the punishment that we propose, we might observe that punishment for Contempt of Court has traditionally been by way of imposition of fine or, in graver instances, through incarceration of the contemnor. In the instant case, since we are punishing the respondents for their acts of defiance prior to the institution of the O.P (DRT), through which their grievance was ultimately redressed, we feel that the punishment ought not to be one that deprives them of their liberty through incarceration. We believe that a limited deprivation of the fundamental freedoms otherwise enjoyed by the contemnors, by requiring them to render specified hours of community service, would send the correct message to society that acts of disobedience to lawful orders passed by this court will not go unpunished, whilst at the same time ensuring that the contemnors make amends through their beneficial service to society. 11. With a view to ascertaining the community service that could be imposed on the contemnors, we had requested the State Attorney Sri.K.V. Sohan to consult the District Collector, Ernakulam, for providing a list of options for community service. By a communication handed over to us this morning, the District Collector has suggested the following community services which could be considered for imposition on the contemnors herein: 1. Service at Thevara Old Age Home, Kakkanad, Helping 42 inmates as Attender/Care Taker. 2. Service at Govt. Children's Home, Kakkanad, as per the **Cont.Case (C).No.681/2018 : 8 :** directions from the Superintendent. 3. Service at Palliative Care Unit at General Hospital, Ernakulam, as Home Care Assistant to patients at their home as per the instruction from the Medical Superintendent. It is stated that there are approximately 400 home care patients at present and the service time would be from 9.45 a.m to 4.00 p.m. 12. Out of the options suggested by the District Collector, we are inclined to choose the third option for imposition on the contemnors, and accordingly, direct that respondents 3 and 4, namely, Sri.M.V. Shaji and Smt.Preetha Shaji shall each render 100 hours of community service at the Palliative Care Unit at General Hospital, Ernakulam as Home Care Assistant to patients. They shall render such community service as per the instructions/directions of the Medical Superintendent of the General Hospital, Ernakulam, before whom, they shall report at 10.00 a.m. on 25.3.2019. The Medical Superintendent of the General Hospital, Ernakulam shall ensure that both the respondents herein, namely, Sri.M.V. Shaji and Smt.Preetha Shaji, each renders 100 hours of the aforementioned community service, by fixing the number of days on which they are required to attend to the said service, and the time frame during the day when they are expected to attend to the said service. The Medical Superintendent shall thereafter, on the successful and satisfactory completion of the 100 hours of community service by each of the above respondents, submit a report to the Registrar of this Court indicating the same, and on such report being accepted by the Registrar of this Court, the **Cont.Case (C).No.681/2018 : 9 :** respondents shall be deemed to have suffered the punishment imposed on them through this judgment. It is made clear that, in the event of the respondents Sri.M.V. Shaji and Smt.Preetha Shaji not discharging the required hours of community service, in the manner indicated above, they shall forfeit the benefit of the lenient sentence granted in this judgment, and be liable to such stiffer sentence as may be determined by this Court, after re-opening this contempt case. With the above observations, this Contempt of Court Case is closed. **Sd/HRISHIKESH ROY CHIEF JUSTICE** **Sd/A.K.JAYASANKARAN NAMBIAR JUDGE** prp/19/3/19 **Cont.Case (C).No.681/2018 : 10 :** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A1: TRUE COPY OF THE ORDER IN W.P(C)NO.30651 OF 2017 DATED 26.10.2017** **ANNEXURE A2: TRUE COPY OF THE NOTICE DATED 01.11.2017 SUBMITTED BY ADVOCATE COMMISSIONER ALBERT JOSEPH TO THE RESPONDENT** **ANNEXURE A3: TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT IN PETITION NO.74463 (SECTION NO.G1(B) ISSUED BY RESPONDENT DATED 01.11.2017** **ANNEXURE A4: TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT IN PETITION NO.143340/2017 ISSUED BY RESPONDENT DATED 01.11.2017** **ANNEXURE A5: TRUE COPY OF THE COMMISSION REPORT SUBMITTED BY ALBERT JOSEPH BEFORE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL** **ANNEXURE A6: TRUE COPY OF REPRESENTATION DATED 21.12.2017 SUBMITTED BEFORE RESPONDENT** **ANNEXURE A7: TRUE COPY OF THE ACKNOWLEDGMENT OF RECEIPT DATED 21.12.2017** **ANNEXURE A8: TRUE COPY OF REPRESENTATION 08.01.2018 SUBMITTED BY THE ADVOCATE COMMISSIONER** **ANNEXURE A9: TRUE COPY OF REPLY DATED 05.02.2018 SUBMITTED BY THE STATION HOUSE OFFICER TO THE ADVOCATE COMMISSIONER.** ## **RESPONDENTS ANNEXURES:** **ANNEXURE R1(A): TRUE COPY OF THE COMMUNICATION NO.32/TD/2018/E DATED 09.02.2018 OF THE POLICE INSPECTOR, KALAMASSERY ADDRESSED TO THE REVENUE DIVISIONAL OFFICER, FORT KOCHI ALONG WITH ITS ENGLISH TRANSLATION.** **ANNEXURE R1(B): TRUE COPY OF THE COMMUNICATION NO.161/T.D./18/E1 DATED 05.03.2018 OF THE POLICE INSPECTOR, KALAMASSERY ADDRESSED TO THE VILLAGE OFFICER, THRIKKAKKARA NORTH ALONG WITH ITS ENGLISH TRANSLATION.** **Cont.Case (C).No.681/2018 : 11 :** **ANNEXURE R1(C): TRUE COPY OF THE NEWSPAPER REPORT DATED 08.03.2018 PUBLISHED IN MALAYALA MANORAMA DAILY ALONG WITH ITS ENGLISH TRANSLATION.** **ANNEXURE R1(D): TRUE COPY OF THE PAMPHLET PUBLISHED BY MANATHUPADAM PARPPIDA SAMRAKSHANA SAMITHI SARFAESI VIRUDHA JANAKEEYA PRASTHANAM ALONG WITH ITS ENGLISH TRANSLATION.** **ANNEXURE – R1(E): TRUE COPY OF THE COMMUNICATION NO.304/TD/2018/E1 DATED 28.05.2018 BY THE 2ND RESPONDENT TO THE ADVOCATE COMMISSIONER ALONG WITH ENGLISH TRANSLATION.** **ANNEXURE – R1(F): TRUE COPY OF THE COMMUNICATION NO.313/TD/2018/E1 DATED 31.05.2018 BY THE 2ND RESPONDENT TO THE ADVOCATE COMMISSIONER ALONG WITH ENGLISH TRANSLATION.** **ANNEXURE R1(G): TRUE COPY OF THE BUNDOBUST SCHEME SHOWING THE PREPARATION IN WHICH THE POLICE PARTY REACHED THE SPOT ALONG WITH THE ADVOCATE COMMISSIONER.** **ANNEXURE R1(H): TRUE COPY OF THE FIR IN CRIME NO.1243/2018 OF KALAMASSERY POLICE STATION.** **ANNEXURE R1(I): TRUE COPY OF THE FIR CRIME NO.1244/2018 OF KALAMASSERY POLICE STATION.** **ANNEXURE R1(J): TRUE COPY OF THE NEWS REPORT PUBLISHED IN THE HINDU DAILY DATED 10.07.2018.** **ANNEXURE R1(K): TRUE COPY OF THE NEWS REPORT PUBLISHED IN THE TIMES OF INDIA DAILY DATED 10.07.2018.** **DOCUMENT NO.I(I): TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTY OF THE DEBTOR WHICH NOW STANDS AUCTIONS IN FAVOUR OF SRI.RATHEESH M.N.** **DOCUMENT NO.I(II): TRUE COPY OF ENGLISH TRANSLATION OF DOCUMENT NO.I(I).** **DOCUMENT NO.I(III): TRUE COPY OF SKETCH SHOWING THE LIE OF THE HOUSE AND APPURTENANT BATHROOM, WELL, ETC.** **DOCUMENT NO.I(IV): TRUE COPY OF ENGLISH TRANSLATION OF DOCUMENT NO.I(III).** **DOCUMENT NO.I(V): TRUE COPY OF SKETCH SEPARATELY SHOWING THE AREA WHICH CAN BE CARVED OUT SEPARATING THE AREA NECESSARY FOR ABSOLUTE ENJOYMENT OF THE HOUSE – PLOT A (10.010 CENTS) IS THE HOUSE AND APPURTENANT OF SRI.M.V.SHAJI – PLOT B (8.200 CENTS) IS THE AREA** **Cont.Case (C).No.681/2018 : 12 :** ## **WHICH CAN BE SEPARATELY CARVED OUT.** **DOCUMENT NO.I(VI): TRUE COPY OF ENGLISH TRANSLATION OF DOCUMENT NO.1(V).** **DOCUMENT NO.I(VII) & (VIII): TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, THRIKKAKKARA NORTH.** **DOCUMENT NO.I(IX): TRUE COPY OF ENGLISH TRANSLATION OF DOCUMENT NO.I(VII) AND (VIII).** **DOCUMENT NO.II(I): TRUE COPY OF LOCATION SKETCH OF THE HOUSE AT ALANGAD VILLAGE IN PARAVOOR TALUK.** **DOCUMENT NO.II(II): TRUE COPY OF ENGLISH TRANSLATION OF DOCUMENT NO.II(I).** **DOCUMENT NO.II(III) & (IV): TRUE COPY OF THE REPORT GIVEN BY THE VILLAGE OFFICER, ALANGAD.** **DOCUMENT NO.II(V) AND (VI): TRUE COPY OF ENGLISH TRANSLATION OF DOCUMENT NO.II(III) AND (IV).** **EXT.R3(A): TRUE COPY OF THE MEMORANDUM OF PETITION OF THE OP (DRT) NO.136/2018.** **//TRUE COPY//** **P.S. TO JUDGE**