Hemanta Kanoria v. South Indian Bank Ltd And ORS

13th February, (AK) 11-13 C.P.A.N 1989 of 2024 in WPA 1223 of 2024 With WPA 1215 of 2024 With WPA 892 of 2024 Hemant Kanoria Vs.

The South Indian Bank Limited and others Mr. Jishnu Chowdhury, Snr. Adv.

Mr. Deepan Kumar Sarkar Mr. Soumalya Ganguli Mr. Naman Choudhury Mr. Subhojyoti Mookherjee Mr. Samriddha Sen ...for the petitioner.

Mr. Dhruv Dewan Mr. Deepanjan Dutta Roy Ms. Arushi Chandra Mr. Udbhav Nanda Ms. Sanjana Jha Ms. Rashi Sharma ...for the alleged contemnors.

1.

The present application has been filed alleging contempt on the part of the alleged contemnors of the order dated August 9, 2024 passed in WPA 1223 of 2024, which was disposed of along with two other writ petitions by the self-same order.

2.

Learned senior counsel appearing for the petitioner contends that in paragraph nos. 8 and 9 of the parent order, the petitioner was permitted to furnish his reply to the show-cause notices issued

by the respondent-Bank within 21 days from that day, indicating the documents which are required to be inspected by/furnished to the petitioner to effectively rebut the allegations made therein (emphasis supplied).

3.

In paragraph no. 9 of the said order, upon such reply being given, the respondent-Bank was directed to fix a date for giving inspection of the documents, if extremely voluminous; alternatively, the Bank was directed to furnish copies of the relevant documents (emphasis supplied) to the petitioner within a fortnight thereafter.

4.

It is contended that the alleged contemnors have not furnished any relevant documents sought by the petitioner in terms of the said order of this court, giving rise to the present contempt application.

5.

Learned counsel appearing for the alleged contemnors takes a preliminary objection as to the maintainability of the contempt application, to the effect that, in the garb of complying with the parent order, the petitioner has undertaken a roving enquiry, by seeking particulars and details of entirely irrelevant documents and information, which have no nexus whatsoever with the rebuttal to the show-cause notice issued by the Bank.

6.

By way of example, learned counsel for the alleged contemnors takes this court through the reply given by the petitioner, which, inter alia, seek names and details of all officials of the Bank who were involved in granting the subject loans, who were monitoring the manner in which the loans were being utilized and who were scrutinizing the loan accounts, etc.

7.

Thus, it is contended that the alleged contemnors, on valid grounds, refused to give all such documents to the petitioner, particularly since those were not at all relevant to effectively rebut the allegations made in the show-cause notice, as envisaged in the parent order of this court dated August 9, 2024. It is submitted that copies of the FAR and its annexures, which comprised of the primary premise of the show cause notice, were duly furnished to the petitioner.

8.

Learned counsel for the alleged contemnors also places reliance on the show-cause notice, which was the genesis of the said reply of the petitioner. A copy thereof is filed in court and is kept on record. 9.

Learned counsel for the alleged contemnors cites on Ram Kishan vs. Tarun Bajaj and others reported at (2014) 16 SCC 204, in support of the proposition that unless there is disobedience of such a nature

which is established beyond reasonable doubt, no penal action can be taken in contempt.

10. The Hon'ble Supreme Court observed, inter alia, that undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither be fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings, it was held, are quasicriminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of the contempt jurisdiction on mere probabilities.

11. The Hon'ble Supreme Court, in the said report, went on to observe that even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished.

12. Furthermore, it was held to be a well-settled principle of law that if two interpretations are

possible, and if the action is not contumacious, a contempt proceeding would not be maintainable.

13. Learned senior counsel appearing for the petitioner, in reply, submits that it will be evident from the nature of the show-cause notice as well as the purport of the reply thereto that the documents sought by the petitioner were relevant.

14. In deciding the threshold issue of maintainability of the contempt application, the purport of the parent order dated August 9, 2024 is required to be looked into.

15. The said order, virtually passed on consent, took into consideration principles of fair play and transparency and sought to ensure, as evident from the order itself, that adequate opportunity to rebut the allegations made against the petitioner was given to the petitioner.

16. In such context, it was observed that the documents which are required to be inspected "to effectively rebut the allegations made" in the showcause notice would be furnished by the alleged contemnors.

17. Moreover, the alleged contemnors were directed to furnish copies of only the relevant documents to the petitioner.

18. The use of the words "effectively rebut" and "relevant" clearly leave a scope of interpretation, in tune with the respective perceptions of the parties, as to what documents would be "relevant" for "effective" rebuttal of the allegations made in the show-cause notice.

19. Going by the principle laid down by the Hon'ble Supreme Court in Ram Kishan (supra), if there is a scope of interpretation or any ambiguity in the parent order, there cannot be any penal action on the premise that there was willful and deliberate violation of an order of the court.

20. Since the alleged contemnors has an arguable defence for not furnishing all documents sought by the petitioner, which is required to be interpreted in law, an adjudicatory process is required to precede the decision as to whether those documents were at all relevant for the purpose of rebutting the allegations made in the show-cause notice against the petitioner.

21. It is beyond the scope of this court, sitting in contempt jurisdiction, to enter into such adjudicatory process.

22. In an action of contempt, the court is only to see whether there was a clear willful and deliberate disobedience of the order of this court.

23. In the instant case, however, the parent order is susceptible to arguments and interpretation as to whether the documents sought by the petitioner are at all relevant and/or required for effective rebuttal of the allegations made against the petitioner.

24. Hence, the resistance of the alleged contemnors to the petitioner's claim of copies of documents cannot be said to amount to a willful or deliberate disobedience of the court's order.

25. In the above context, this court is of the opinion that the alleged contemnors cannot be labelled as persons who willfully disobeyed any order of the court.

26. Thus, no contempt lies.

27. However, it is made abundantly clear that this court has not entered into the merits of the respective contentions of the parties as to what would be the documents relevant or required by the petitioner to effectively rebut the allegations made against the petitioner by the respondent-Bank in the show-cause notice in question.

28. It is kept open for the parties to argue such issue before the writ court where, we are informed, a challenge by way of a writ petition is pending against the final declaration of the petitioner as fraud.

29. In the light of the above observations, CPAN 1989 of 2024 is dismissed as not maintainable, without any order as to costs.

30. Urgent photostat certified copies of this order, if applied for, be furnished to the parties on compliance of requisite formalities.

(Sabyasachi Bhattacharyya, J.)