Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 1 of 25
IN THE HIGH COURT OF DELHI AT NEW DELHI
Ex P No. 134/2007, EA No. 589/2007 &
CCP (Crl.) No. /2009 (to be numbered by the Registry)
METROPOL INDIA (P) LTD. ..... Decree Holder
Through: Mr.Pravin Anand with Ms. Ishani
Chandra and Ms. Vaishali Kakra, Advocates.
versus
PARVEEN INDUSTRIES INDIA ..... Judgment Debtor
Through: Mr. Brijesh Gupta and
Mr. V.P.Ghiraiya, Advocates.
CORAM:
HON'BLE DR. JUSTICE S.MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
O R D E R
08.07.2009
1. Suit No.3877 of 1991 was filed by the Plaintiff Metropol India Pvt. Ltd.
(„MIPL‟) against the Defendant M/s. Parveen Industries India complaining
of the violation of its trade mark “Cleanzo” by the Defendant and also
complaining of the infringement of its copy right and the passing off its
goods by the Defendant as those of the Plaintiff. In the said suit an
application, being IA No. 90 of 2000, was filed jointly by the parties for
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 2 of 25
recording a compromise and for a decree to be passed in favour of the
Plaintiff and against the Defendant in terms of the settlement. Among the
terms of the settlement which were set out in the application were the
following:
“1. The defendant acknowledges the plaintiff to be the
registered proprietor of the trademark CLEANZO
registered in class 3 under Registration No. 335807.
2. The defendant also acknowledges the plaintiff to be
the owner of copyright in the label titled CLEANZO, as
described in the plaint, bearing the registration No. A-
11008/74. The defendant undertakes not to infringe the
said copyright in future.
3. The defendant undertakes not to use the trademark
CLEANJO or any other mark deceptively similar to the
plaintiff‟s trademark CLEANZO in relation to any goods
falling in class 3 and class 5. However, the defendant is
entitled to make use of the trademark PRAVEEN‟S
CLEANER.
4. The defendant shall stop using the colour red or any
shade of the colour red in the colour scheme of the
cleaning preparation manufactured and marketed by it.
The defendant has now started to use the carton and
packaging a photograph of which is annexed herein as
Annexure A.
5. The defendant undertakes that it will stop using the
logo similar to the oval logo in which the word Metropol
appears on the cleaning preparation that is being
manufactured and marketed by it.
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 3 of 25
6. The defendant undertakes that it shall forthwith
withdraw C.O. No. 11 of 1990 filed by it against the
plaintiff herein.
7. The defendant will withdraw all the oppositions filed
by it against the plaintiff, which are pending before the
Registrar of Trademarks.
8. The defendant shall withdraw its trademark application
for the word CLEANJO or any other trademark
application filed by it which m ay conflict with the
aforementioned terms.
9. The plaintiff hereby settles the criminal complaint filed
by it against the defendant bearing FIR No. 129/90 and
FIR No. 40/90 pending in the court of Metropolitan
Magistrate, New Delhi and shall withdraw the same or
not prosecute/press the same, as the position may be in
law.
10. In terms of the aforesaid undertakings given by the
defendant, the plaintiff forgoes its claim for rendition of
accounts of profits and costs.
11. The above undertakings have been given by Mr.
Pravin Kumar Sabharwal, the sole proprietor of the
defendant firm and shall be binding on all his legal heirs
and assigns.
12. It is therefore prayed that the present memo of
compromise be recorded and a decree may be passed in
favour of the plaintiff and against the defendant by this
Hon‟ble Court in terms of the above settlement.”
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 4 of 25
2. The application was supported by the affidavits of both the Plaintiff as
well as the Defendant. On behalf of the Defendant, Parveen Sabharwal son
of late Shri B.N. Sabharwal, as proprietor of the Defendant, stated on
affidavit that he had read the contents of the application and that the facts
stated therein were true to his knowledge and that he adopted the contents of
the accompanying application as part and parcel of his affidavit. Parveen
Sabharwal also made a statement before the Court on 27th January 2000 soon
after the statement of the Plaintiff was recorded. The said statement reads as
under:
“Statement of Sh. Praveen Sabharwal son of late Shri
Badri Nath aged 50 years resident of 3239, Gali School
Wali, Paharganj, New Delhi on SA.
I have heard the statement of the plaintiff. The
same is correct. Ex. C-1 is signed by me at points “C”
and “D”. It is also signed by my counsel at point “E”.
Ex. C-1 is also supported by my affidavit, which is Ex.C-
3. I Shall abide by the terms, as set out in Ex.C-1.”
3. In terms of the statements made by the parties the following order was
passed by the Court on 27th
January 2000:
“S.No. 3877/91
Mr. Sai Krishna, counsel for the plaintiff seeks leave of
the Court to file a fresh power of attorney. Let that be
taken on record.
IA 90/2000 in Suit No. 3877/91
This is an application under Order XXIII Rule 3 CPC.
Let the statement of the parties be recorded.
ORDER
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 5 of 25
Statement of Sh. Satya Prakash, Managing Director of
the plaintiff company and Sh. Praveen Sabharwal, sole
proprietor of the defendant company have been recorded
separately. Ex.C-1 is signed by the parties and their
respective counsel. It is also supported by the affidavit of
the parties. Parties shall remain bound by the terms as set
out in Ex.C-1.
The suit is disposed of in terms of Ex.C-1.”
4. The present execution petition has been filed by the Plaintiff {Decree
Holder (DH)} alleging that the Defendant [Judgment Debtor (JD)] has
continued to trade in cleaning preparations under the mark “Parveen‟s
Cleanjo” and written in a shade of red colour, contrary to the terms of the
compromise. It is further contended by the DH that the JD also
surreptitiously got the trade mark “Parveen‟s Cleanjo” registered under
699710 in Class 5. It was only much later that the Trade Mark Registry by
an order dated 4th July 2003 treated the application of the JD for registration
of the trade mark “Cleanjo” as withdrawn in view of the terms of the
compromise entered into between the parties. Consequent thereto, the DH
filed rectification proceedings in Application No. 699710 in Class 5 which is
stated to be pending in the Trade Mark Registry. It is submitted that
although in terms of the compromise the Defendant was to withdraw his
trade mark application for the mark “Cleanjo” soon after 27th January 2000
when the suit was decreed, the JD filed the requisite form in the Trade
Marks Registry only in April 2009. Learned counsel for the JD has today
produced a copy of a receipt issued by the Trade Mark Registry indicating
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 6 of 25
that the JD has on 21st April 2009 filed Form TN 35 seeking cancellation of
the registered trade mark. It is apparent therefore that till 21st April 2009 the
JD did not take any steps to comply with the specific term of the settlement
in this regard, as recorded in the compromise decree.
5. The DH has in these proceedings also filed EA No. 589/2007 under Order
XXXIX Rule 2A CPC. On 14th
November 2008 this Court passed the
following order:
“14.11.2008
Ex. 134/2007 and EA No.589/2007 (under Order 39
Rule 2A of the CPC)
The defendant/judgment debtor had entered into a
compromise with the plaintiff/decree holder whereby the
defendant/ judgment debtor had agreed not to use the
trademark “CLEANJO” or any other mark deceptively
similar to the plaintiff‟s mark “CLEANZO” in relation
to goods falling in class 3 and 5. The defendant was
however permitted to use the trademark “PRAVEEN‟S
CLEANER”. The defendant had also agreed to stop
using the colour red or any shade of colour red in the
colour scheme of the cleaning, preparation, manufactured
and marketed by them. This court vide order dated 27th
January, 2000 disposed of the suit in terms of the
compromise application.
It is the case of the decree holder that the
defendant/judgment debtor is continuing to use the
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 7 of 25
trademark “PRAVEEN‟S CLEANJO” in relation to the
aforesaid goods and the same is in violation of the decree
of this court. Notice of the execution and the application
was ordered to be issued to the judgment debtor and
neither any response has been filed nor anyone is present.
However, at this stage, the counsel of the judgment
debtor has appeared and states that complete set of papers
were not received by the judgment debtor. However, the
counsel is unable to state as to when the judgment debtor
was served and as to why the demand, if any, for
complete paper book was not made earlier.
Though, the decree holder has also applied for Local
Commissioner, I feel that even if the averments of the
decree holder are to be believed, the appointment of the
Local Commissioner now when the counsel for the
judgment debtor has appeared is likely to serve no
purpose.
The decree is in the nature of a permanent injunction,
which, under Order 21 Rule 32 of the CPC is executable
by imprisonment. The judgment debtor is directed to be
present in person before this court on 16th December,
2008.”
6. Thereafter on 16th December 2008 the following order was passed:
“16.12.2008
Ex. No.134/2007 and EA No.589/2007 (under Order 39
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 8 of 25
Rule 2A of the CPC.
The judgment debtor has not appeared in spite of
direction. The counsel for the judgment debtor states that
the judgment debtor is suffering from high cholesterol,
high blood pressure and high blood sugar. There does
appear to be any valid reason for non-appearance of the
judgment debtor before the court. Last opportunity is
given to the judgment debtor to appear on 20th
February, 2009 failing which coercive steps shall be
taken.”
7. On 15th
January 2009 the JD filed a reply to the execution petition
supported by his affidavit. He also filed a reply to the application under
Order XXXIX Rule 2A. Inter alia the stand of the JD in the reply was that
“it is absolutely wrong to suggest that Defendant/Judgment Debtor has
started manufacturing cleaning preparations under trade mark “Parveen‟s
Cleanzo” and that the Defendant has been continuously using the trade mark
“Parveen‟s Cleanjo” in the packaging of the plastic bottle and not in a tin
can since April 2000 and therefore the Defendant is not violating the terms
of the settlement in Suit No. 3877 of 1991, therefore, the petition is liable to
be dismissed. In para 7 of the reply it was stated:
“7. ...... It is absolutely wrong to suggest that
defendant/judgment debtor has started manufacturing
cleaning preparations under the trade mark PARVEEN‟S
CLEANJO and that too defendant has been continuously
using the trade mark PARVEEN‟S CLEANER in the
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 9 of 25
packaging of Plastic Bottle not in a Tin Box since April
2000, therefore, the defendant is not violating the terms
of settlement as set out in IA No. 90/2000 in Suit No.
3877/91, therefore, petition is liable to be dismissed.”
8. In the reply to the application also it was denied that the JD was violating
the terms of the settlement recorded in IA No. 19 of 2000 in the Suit No.
3877 of 1991.
9. On 20th February 2009 the said replies were considered by this Court.
What transpired in Court on that day is recorded in the order passed on that
day which reads as under:
“20.2.2009
Ex. No.134/2007 and EA No.589/2007 (under Order 39
Rule 2A of the CPC)
The judgment debtor as identified by his counsel is
present in person. The judgment debtor has also filed a
reply to the execution denying the violation/breach of the
consent decree and the averments in the execution
petition. The counsel for the plaintiff has handed over in
the court a carton stated to be marketed by the defendant
and containing the words “Parveen‟s Cleanjo”. It is
deemed expedient to record the statement of the
judgment debtor. The statement has been recorded.
The counsel for the plaintiff on instructions from
representative of his client disputes the statement made
by the judgment debtor in the court. In
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 10 of 25
the circumstances, it is deemed expedient to appoint a
court commissioner to visit the premises i.e. 3239/1, Gali
School Wali, Paharganj, New Delhi-110055 and 1344/4,
Chuna Mandi, Paharganj, New Delhi-110055 where the
judgment debtor has deposed his goods to be stocked just
now to find out whether the statement of the judgment
debtor is correct or not. Mr. Kapil Sabharwal, son of the
judgment debtor is also present in the court. As soon as
this proposal for sending the court commissioner to the
premises today itself was mooted he was seen leaving the
court room and has been called back. He was also found
to be in possession of a cell phone which the litigants are
not permitted to carry inside the court rooms.
The judgment debtor who is still in the witness box at this
stage on being prompted by his counsel to come clean as
to whether the carton as denied by the judgment debtor in
his statement on oath would be found in the premises to
be visited by the court commissioner or not, now states
that the said carton would be found in his premises if the
court commissioner is to visit the same just now.
It is deemed expedient to record the statement of
judgment debtor again.
The statement has been recorded.
From the aforesaid, it is clear that the judgment debtor
has not only filed a false reply with affidavit to the
execution but has in his statement before this court also
deposed falsely on oath. The counsel for the
decree holder states that the judgment debtor has in the
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 11 of 25
second statement recorded today yet again deposed
falsely about the goods, photographs of which have
been annexed to the execution application being not his
and the decree holder will be in a position to prove the
same.
Before meeting out any punishment to the judgment
debtor for the conduct aforesaid, it is deemed expedient
to issue a show cause notice to him as to
why proceedings should not be initiated against him and
as to why he should not be punished for false affirmation
of affidavit and false statement made in the court and
which also amounts to contempt of this court. The reply
to the show cause notice supported by an affidavit be
filed within ten days. For such conduct of the judgment
debtor, conditional costs of Rs.15,000/- payable to
the Delhi Legal Services Authority payable within ten
days are also imposed upon the judgment debtor.
List on 13th March, 2009 for further consideration. The
decree holder may in the meanwhile file a rejoinder to the
reply of the judgment debtor to the execution.
In view of the above, it is not deemed necessary to now
issue commission.
The JD to remain present on all further dates unless
expressly exempted.”
10. Two statements made by the JD before this Court, which have been
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 12 of 25
referred to in the said order, require to be set out and they read as under:
“Statement of Shri Parveen Kumar Sabharwal aged about
55 years S/o Late Shir Badri Nath, R/o 1344/4, Chuna
Mandi, Paharganj, New Delhi - 110 055 on S.A.
The carton which for identification is Exhibit C-1 is not
mine. I am still carrying on the business of
manufacturing and selling the deodorant under the name
PARVEEN‟S CLEANER. I am carrying the said
business from 3239/1, Gali School Wali, Paharganj, New
Delhi-110055. The goods are lying as of today also at the
said premises. I also stock my goods at 1344/4, Chuna
Mandi, Paharganj, New Delhi-110055 and at no other
place. The goods as in carton Exhibit C-1 will not be
found in my premises. I sell my goods to a large number
of dealers.
Second statement of Shri Parveen Kumar Sabharwal aged
about 55 years S/o Late Shir Badri Nath, R/o 1344/4,
Chuna Mandi, Paharganj, New Delhi - 110 055 on S.A.
I now say that goods as in Exhibit C-1 would be found by
the court commissioner if he visits the premises just now.
With the assistance of my son I state that about 1000
cartons would be lying in the premises. I do not
remember since when I have been carrying on business in
the carton as Exhibit C-1. Again said, I have been
carrying on business of sale of goods in such cartons
since the year 2008.
I have seen the photographs annexed to the execution
application and which for identification are Exhibit C-2
and C-3 they are not of my product.”
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 13 of 25
11. Pursuant to the show cause notice issued to the Judgment Debtor as to
why he should not be punished for the contempt, he filed a reply on 6th
March 2009. Thereafter as on 13th
March 2009, the following order was
passed:
“The judgment debtor is present in person. He has not
deposited the conditional costs of Rs.15,000/- with the
Delhi Legal Services Authority as directed on 20th
February, 2009, as yet. No explanation also for not
complying with the order has been furnished. The
counsel for the judgment debtor states that the judgment
debtor is today carrying Rs.15,000/- with him.
The judgment debtor has filed a reply to the show cause
notice issued in the order dated 20th
February, 2009. A
perusal of the said reply shows that no explanation
whatsoever is offered therein for filing the reply dated 9th
January, 2009 to the execution and which reply was
proved to be false as per the statement of the judgment
debtor recorded on 20th February, 2009. Further, the
reply giving an explanation to the false statement made
on oath on that date also gives a reason contrary to what
transpired in court and also as recorded in the order sheet
of that date. In the circumstances, before hearing the
judgment debtor further, it is deemed expedient that the
judgment debtor deposits the sum of Rs.15,000/- which
he was directed to deposit on 20th February, 2009 with
the Delhi Legal Services Authority on or before 16th
March, 2009 and also pays costs of today‟s adjournment
of Rs.15,000/- to the counsel for the plaintiff before the
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 14 of 25
next date.
I have inquired from the counsel for the decree holder as
to the benefit accruing to the judgment debtor by using
the mark of the decree holder. The counsel for the decree
holder, on instruction from the representative of the
decree holder present in court states that while the
product of the decree holder sells for about Rs.150/- and
the judgment debtor is selling the infringing product at
the same rate, the price of a similar unbranded product
would be in the region of Rs.60 to Rs.80. The costs
aforesaid have been awarded in the light of the aforesaid
facts.
List on 27th
March, 2009.”
Thereafter the JD filed an unconditional apology in response to the show
cause notice. The DH filed a rejoinder to the reply filed by the JD to the
execution petition. Thereafter on 8th May 2009 the following order was
passed:
“Ex.P 134/2007
The counsel for the judgment debtor/contemnor states
that he is unwell and seeks adjournment.
List on 21st July 2009.
In the present execution show cause notice was issued by
the judgment debtor on 20th February 2009 as to why he
should not be punished for contempt of court. The
judgment debtor has filed an affidavit pursuant thereto.
Even though the judgment debtor has not applied under
Section 14 (2) of the Contempt of Courts Act it is
deemed expedient to place the matter before Hon‟ble the
Chief Justice for directions.
List the execution before this Court on 6th July 2009.”
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 15 of 25
12. On 6th
July 2009 the matter was placed before this Court pursuant to the
directions issued in the administrative side consequent upon the order dated
8th
May 2009 passed by the predecessor Judge. This Court was not satisfied
inter alia with the “unconditional apology” to the show cause notice issued
by this Court filed by the JD on 21st March 2009. It was noticed that the
said “unconditional apology” proceeds on the basis that the only issue was
about the JD having used the trade mark of the DH in respect of
Naphthalene balls which was referred to in the order dated 20th February
2009 passed by this Court. It is plain to this Court, particularly from the
rejoinder filed by the DH to the reply filed by the JD to the execution
petition, that the JD was using the red colour background for his labels
“Parveen‟s Cleaner” and also using the mark “Cleanjo” by affixing a label
reading “Parveen‟s Cleanjo” in a combination of red and white colours on 5
ltrs. cans in which he was selling the cleaning liquid. Likewise even on the
tin cans of 5 ltrs., (The photographs of which are enclosed with the
replication and specimen samples of which have been produced in Court
today) it appears that the JD has been using the mark “Parveen‟s Cleanjo”.
Learned counsel for the JD attempted to submit that these marks on the tin
cans and the plastic 5 ltrs. can were not used by him and they did not contain
any date of manufacturing.
13. However pursuant to the order passed by this Court on 6th
July 2009 the
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 16 of 25
JD filed yet another “unconditional apology” before this Court today. The
same has been taken on record. The said apology which is in four paragraphs
reads as under:
“The Judgment debtor, above named humbly submits as under:
1. That the decree holder herein filed suit for permanent
injunction against the defendant/JD for infringement of trade
mark “CLEANZO” registered under Class 3 vide registration
No. 335805. However, the matter between the parties was
resolved by way of compromise and modalities in respect
thereof were set out in application under Order 23 Rule 3 CPC.
Consequently, the JD was disposed of vide consent decree
dated 27.01.2000. The relevant and substantial extract of the
compromise application is reproduced as under:
“3. The defendant undertakes not to use the trademark
CLEANJO or any other mark deceptively similar to the
plaintiff‟s trademark CLEANZO in relation to any goods
falling in class 3 and class 5. However, the defendant is
entitled to make use of the trademark PRAVEEN‟S
CLEANER.
4. The defendant shall stop using the colour red or any
shade of the colour red in the colour scheme of the
cleaning preparation manufactured and marketed by it.
The defendant has now started to use the carton and
packaging a photograph of which is annexed herein as
Annexure A.
8. The defendant shall withdraw its trademark application
for the word CLEANJO or any other trademark
application filed by it which m ay conflict with the
aforementioned terms.”
2. The judgment debtor humbly tenders an unconditional and
unqualified apology about his conduct before this Hon‟ble
Court on 20.02.09. However, it is submitted that the JD is an
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 17 of 25
illiterate person and has been engaged in the business of floor
cleaners and other allied toiletries products for earning his
livelihood. It is humbly submitted that he is also suffering from
hypertension, high blood pressure and high cholesterol. Thus,
his conduct before this Hon‟ble Court was unintentional and
was not bonafide but he became nervous on that day because of
his severe diseases. He was also not aware about his
examination to be conducted on that very day. The judgment
debtor humbly submits that he has/had high esteem and respect
to the orders as well as directions issued by this Hon‟ble Court.
He never dare disrespect any of the order passed by this
Hon‟ble Court.
3. The Judgment debtor humbly submits that mistakenly he has
violated the clause 4 and 8 of the application under Order 23
Rule 3 vide which the modalities of settlement were arrived at
between the parties. The JD submits that as per the question of
clause 3 is concerned, he has used the word “from the house of
PARVEEN‟S CLEANJO” in relation to naphthalene balls
falling in class 1 of the international classifications. It is
submitted that he has surrendered his Registration Certificate
vide Registration No. 699710 before the Registrar of
Trademarks which was inadvertently issued by the Ld
Registrar.
4. The judgment debtor humbly submits that he has been
dealing in around 20 products out of which 3 or 4 fall within the
ambit of the compromise application. However, due to paucity
of time, the JD could not segregate the sale details as well as
profit earned from the sale of the said goods. However, he
undertakes to produce all the bill books as well as the other
relevant records before this Hon‟ble Court as and when
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 18 of 25
required by this Hon‟ble Court for the purpose of their
examination. The sales tax returns as well as income tax
balance sheets the reflecting the composite sale figure as well as
the profits earned are annexed herewith.”
The aforementioned statement of “unconditional apology” is supported by
an affidavit of the contemnor Parveen Sabharwal, who is present in Court
today.
14. It appears to this Court that the JD has in the above statement has finally
admitted to having violated the terms of settlement on the basis of which the
decree was passed by this Court. As also noticed earlier, it is only on 21st
April 2009 that he finally filed the necessary form TN 35 in the Trade Mark
Registry seeking cancellation of the trade mark in respect of the mark
“Cleanjo”.
15. As pointed out in the order dated 20th February 2009 passed by this
Court there are two distinct aspects of the matter. The first relates to the JD
being in breach of the terms of the settlement on the basis of which the
decree dated 27th January 2000 was drawn up. There can be no manner of
doubt from what has transpired and noticed hereinbefore that the JD has in
breach of the said terms of settlement been continuing to use the trade mark
“Parveen‟s Cleanjo” and “Cleanjo” for his cleaning preparations, continuing
to use the colour red or a shade of colour red in the colour scheme of the
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 19 of 25
cleaning preparations marked by him, while holding out on its other related
products that those products are from the house of “Parveen‟s Cleanjo” and
has also not taken steps to seek cancellation of its trade mark in respect of
“Cleanjo” till 21st April 2009. In other words, the JD has acted with
impunity in wilfully violating the terms of the settlement on the basis of
which the judgment and decree was passed in Suit No. 3877 of 1991.
16. As regards the JD being in breach of the terms of the decree the
provisions of Order XXI Rule 32 CPC will straightway stand attracted. The
course open to the DH is to enforce the decree of injunction by seeking the
detention of the JD in civil prison or by attachment of his property or by
both. Under Order XXI Rule 32 (3) where any attachment under sub-rule
(1) or (2) has remained in force for six months and if the JD continues to be
in disobedience of the decree, the DH can apply to have the attached
property sold, and out of the proceeds of the sale, the Court may award to
the DH such compensation as it thinks fit, and shall pay the balance to the
JD on his application.
17. It is submitted by Mr. Parveen Anand learned counsel for the DH that
considering the length of time for which the JD has been in breach of the
terms of the decree, an order of mere attachment of the property of the JD
would hardly constitute a deterrent and that in the event the JD ceases to be
in breach soon after the passing of the order of attachment, the option of
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 20 of 25
getting the attached property sold in terms of Order XXI Rule (3) would also
not be available to the DH. He accordingly prays for an order of civil
imprisonment as that alone would prove a deterrent not only to the JD in the
present case but generally as well.
18. As regards the JD being in contempt of the Court, it is submitted by
Mr. Anand that the making of a false statement on affidavit as well before
the Court would straightway attract the provisions of Section 2(c) of the
Contempt of Courts Act, 1971 read with Section 12 thereof. It is submitted
that in the instant case the procedure of a show cause notice being issued to
the contemnor and his reply being considered have been duly complied with.
He relies upon the decision in Dhananjay Sharma v. State of Haryana AIR
1995 SC 1795 to submit that a strict view must be taken of the false
statement made before the Court, which has the tendency of interfering with
the administration of justice. It is submitted that this would be independent
of any other punishment to which the contemnor may be subject under the
provisions of the Indian Penal Code.
19. Appearing for the contemnor and JD, Mr. Brijesh Gupta learned counsel
submits that the sentencing of the JD to civil imprisonment should be the last
option; if the decree can be satisfied otherwise by attaching the property of
the JD, that should first be resorted to . It is submitted that at present the JD
is operating from two premises and his business is not confined to the
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 21 of 25
cleaning preparations “Parveen‟s Cleaner” or “Parveen‟s Cleanjo”. It is
submitted that since the JD deals in a range of products, the attachment of all
the JD‟s stocks would be uncalled for. As far as the immovable property is
concerned both the premises from where the JD operates are rented
premises. It is submitted that one more opportunity should be given to the
JD to stop being in breach of the terms of the settlement and only thereafter
should any coercive steps be taken against him. It is submitted that the
health condition of the JD is such that no civil imprisonment should be
directed.
20. This Court finds that the decree was passed by this Court way back on
27th January 2000. For a period of over nine years now the JD has been in
breach of the terms of the settlement with impunity. A clear picture of the
exact profit earned by the JD by selling products including the cleaning
preparations by violating the terms of the decree is not easily assessable
from the copies of the income tax returns and sales tax returns filed by the
JD. It is pointed out by learned counsel for the DH that if the disclosed
figures of sales were to be believed it would mean that the JD has been
making sales to the extent of Rs.25,000/- per month of all his products. It is
submitted that this is highly unrealistic.
21. This Court at this stage does not wish to examine the question of the
exact profits generated by the JD by violating the terms of the decree. As far
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 22 of 25
as the present proceedings are concerned, it is apparent that even if
attachment is ordered of the entire stocks of the JD at the two places of his
business, that by itself may not constitute a deterrent, particularly where the
breach of the terms of the settlement has continued for a period of over nine
years. This Court finds merit in the contention of the learned counsel for the
DH that unless there is some order of detention of the JD in civil prison, no
effective execution of the decree can be achieved.
22. The Court is mindful of the provisions contained in Sections 51, 58 and
60 of the CPC. Order XXI Rule 32 being a specific provision to deal with
the situation in hand, the only course available to the Court, upon finding
breach of the terms of the decree by the JD, is to either order his detention in
the civil prison or by attachment of the property of the JD or by both. There
is no bar under Section 60 CPC for attaching the stocks of the JD available
at both his godowns. Unlike the conditions stipulated in Section 58 CPC as
regards the maximum term of civil imprisonment, in the event of the
execution of a decree for payment of money, there appears to be no such
restriction as regards a decree for injunction. Nevertheless, keeping in view
the submissions made on behalf of the JD this Court directs as under:
(i) For the breach of the terms of the decree, in terms of Order XXI
Rule 32, the JD is sentenced to civil imprisonment for a period of 2
weeks i.e. 14 days from the date of his surrender. This order will
remain suspended for a period of one week from today to enable the
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 23 of 25
JD to seek further appropriate remedies by way of appeal. If the JD
does not file any appeal within a period of one week from today i.e.
on or before 15th July 2009 and by that date there is no stay of the
present order as regards the sentence awarded to the JD, this part of
the order would immediately come into effect.
(ii) The property of the JD, as is evident from the income tax returns
filed by the JD for the year 2008-09 and a copy of which has been
placed on record, includes the entire stocks of the business of the JD
lying at the two premises at 3239/1, Gali School Wali, Pahar Ganj,
New Delhi-110055 and 1344/4 Chuna Mandi, Paharganj, New Delhi
as well as a Maruti Car bearing No. DNJ-0132. This entire property
shall hereby stand attached. The bailiff of the Court will immediately
proceed to both the premises on or before 11th July 2009 to effect the
attachment. The aforementioned properties will be placed under seal
and will be subject to further orders passed by this Court. The car will
be locked and keys taken over by the bailiff. It will be open to the
bailiff to seek the assistance of the SHO, Police Station Pahar Ganj to
effectuate this part of the order. The bailiff will file a report of
compliance in this Court within one week.
23. As regards the contempt proceedings, this Court is not persuaded by
either of the unconditional apologies offered by the JD. Even in the last
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 24 of 25
unconditional apology filed by the JD today, it is not clear whether the JD
has undertaken not to continue to be in breach of the decree. In any event as
already recorded in the order dated 13th
March 2009, the JD is guilty of
filing a false reply and then giving explanation to the false statements made
on oath. The JD was found to have given a reason for making a false
statement contrary to what transpired in Court. All of this is recorded in the
orders dated 20th February and 13
th March 2009. There can be no manner of
doubt that the JD has made false statement before this Court which has had
the tendency of interfering with the administration of justice. Following the
judgment of the Supreme Court in Dhananjay Sharma, this Court is of the
view that the JD, for being in contempt of the Court, should be sentenced to
simple imprisonment for two weeks. It is made clear that this sentence of
imprisonment will run concurrent with the civil imprisonment ordered by
this Court for the JD being found in violation of the terms of the decree. In
other words, the serving out of the civil imprisonment for two weeks will be
treated as period served towards the simple imprisonment ordered in terms
of Section 12 of the Contempt of Courts Act, 1971. The sentence of two
weeks of simple imprisonment awarded to the JD for being in contempt of
Court will also stand suspended for a period of one week from today to
enable the contemnor to file an appeal. If no order staying the order of this
Court is passed by a superior Court, this part of the order will immediately
come into effect.
Ex.P. No. 134/2007 & CCP (Crl.) No……/2009 page 25 of 25
24. E.A. No 589/2007 and Contempt Petition (Crl.) No……../2009 stand
disposed of in the above terms.
25. The Execution Petition No. 134 of 2007 be placed on board before this
Court on 15th
February 2010.
26. The JD is directed to pay the costs of Rs.20,000/- to the DH as costs for
these proceedings within a period of four weeks from today.
27. A copy of this order be sent to the Registrar (Original) of this Court
for issuing necessary directions to the bailiff to immediately carry out the
directions issued.
28. A copy of this order be sent to the SHO, Police Station Pahar Ganj,
Delhi for taking steps for apprehension of the JD and for consigning him to
the civil prison on the expiry of one week from today, subject of course to
the orders of the superior Court.
29. Order dasti to the parties.
S.MURALIDHAR, J
JULY 08, 2009
dn