IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE EC405OF2014RELIANCE CAPITAL LIMITED Versus MAHENDRA KUMAR RAJ.BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date : 31st March, 2015.
Mr.Debnath Ghosh, Advocate Mr.Saunak Sengupta, Advocate Mr.Avijit Dey, Advocate ….for decree holder Mr.Ranjan Kr.
Kali, Advocate ….for judgment debtor Mr.Saumen SekharGhosh, Advocate …[ in person ].Mr.S.N.Mookherji, Sr.Advocate as Amicus, curie The Court: - A very unhealthy practice has developed to use a mild expression when a litigant in pending matters writes letters directly to the Judge, hearing the matter in an attempt to remove the matter from the list by making scurrilous remarks against the judge concerned.
It becomes wORS.when an advocate writes such letters accusing the Judge.
In the instant case one Saumen Sekhar Ghosh claiming himself to be an advocate and law publisher has issued a letter to Mr.Avijit Dey, Advocate-onrecord, for the decree holder with a copy addressed to me and to the Security, National Judicial Commission, New Delhi through the Registrar, Hon’ble Supreme Court of India with a request to maintain a close watch on me.
It is alleged that I am acting in partisan or a bias manner towards banks and NBFCs under the aegis of few Solicitors and Advocates.
In the said letter I was requested to recall the orders in EC405of 2014 allowing both the parties to contest the matter pending before City Civil court.
Initially I thought of sending the matter to the Bar Council, for taking necessary disciplinary action against misconduct committed by the said Advocate.
However, I thought before I pass any order, I should give an opportunity to Mr.Saumen Sekhar Ghosh to file an affidavit in this proceeding.
Mr.Ghosh appeared and filed a petition, offering some explanation and justification in writing the undated letter in which allegations have been made against this Court.
It is stated in the said petition that this Court has initiated a proceeding which is not permissible in law.
This Court, despite being a High Court, has no power to take cognizance of contempts of Court and this Court has failed to appreciate that any statement made in good faith concerning the presiding officer of any subordinate Court would not amount to contempt.
The alleged contemnor has referred to Section 6 of the Contempt of Courts Act and submitted that High Court is subordinate to Supreme Court and the complaint to the Supreme Court has been made in good faith.
In justification of writing the letter, it is stated that this Court has failed and neglected to appreciate the truth that the above-stated case (E.C.-405/14) is barred by the Doctrine of Res-Subjudice & Res-Judicator.
The learned advocate has intimated me by a letter posted on 03/12/14 even before taking-up the above case that on the same subject & between the same parties, one case was pending before the Ld.
City Civil Court (Chief Judge) Kolkata being .Misc.
Case No.4234/14 (Arising out of Misc.
Case 725/14) in which the deponent is acting as an Advocate-on-Record and the said case was pending on and from Feb, 2014.
It is stated that as soon as this Court is informed about the pendency of the said matter, it was the bounden duty of this Court to dismiss the execution application or stay all execution proceedings under order 21 of Code of Civil Procedure on the ground of “Doctrine of Res Subjudice & ResJudicator”.
However, instead of doing that, the Court has proceeded against the judgment debtor which is “unfortunate & not sound by Law of the land”.
It was further stated that the order dated 27th January, 2015 was passed in an attempt to “DIVIDE AND RULE against/between your petitioner, an Advocate & Mahendra Kr.
Raja, the client of your Advocate petitioner by questioning as to whether Mahendra Kr.
Raja had given any instructions to your petitioner in writing the impugned/disputed letter by your petitioner”.
It is stated that this is not “praiseworthy to a man of High Court Judge stature.
Such type of British Colonial policy is also despicable”.
However in response to a question raised by this court as to whether he was instructed to write such letter, it is submitted that he had no specific “WRITTEN INSTRUCTIONS” from the judgment debtor to write such letter.
It is stated that he was appointed by the judgment debtor to conduct the setting aside application before the lower Court.
It is stated that “As such, questioning an irrelevant question as to INSTRUCTION point to your petitioner with copy to Mahendra Kr.
Raja with an object of DIVIDE & RULE BY A BOOK/BY CROOK LIKE BRITISHERS BY THE MIS-USE OF CONTEMPT OF COURT POWERS AS A HIGH COURT JUDGE is totally unfortunate & not desirable from a man of High Court Judge Stature”.
It is further stated that he had written in his letter that this Court has been mislead/deceived by Avijit Dey, Advocate-on-Record of Reliance Capital Limited and hence this court is a “PARTISAN & BIASED & RELIANCE Capital favouritist Judge”.
It is stated that this Court was forced to write the order that the award has not been challenged.
In view of the awarded amount, it falls within the jurisdiction of the City Civil Court at Calcutta.
In paragraphs (viI and (vii) of the petition the contemnor stated : “For that your petitioner had written in his letter that Justice Soumen Sen has been misled/decived by Avijit Dey, Advocate-on-Record for Reliance Capital LTD.& hence, Justice Soumen Sen is a PARTISAN & BIASED & RELIANCE capital favouritist Judge because of the following reasons:(A) Avijit Dey, Adv.for Reliance Capital has failed to persuade Justice Sen that the instant case (E.C.-405/14) is an Execution Case of an Arbitral Award dated 31.10.13 of a small amount of Rs.which also falls under the jurisdictions of city Civil Court, Kolkata.
So, there may be that the Award may have challenged.
However, by deceiving Justice Sen, Justice Soumen Sen has been forced to write – “The Award has not been challenged.” (B) Avijit Dey, Advocate for Reliance Capital has also failed to furnish any information slip that on the case/against/by Mahendra Kr.
Raja, there is no case pending.
As such, Justice Soumen sen has been cheated by the Advocate to cause to be a PARTISAN BIASED & RELIANCE CO./ RICK FAVOURITIST JUDGE.
(VII) For that under the circumstances, your petitioner has no other choice except to writedown letteRs.In this context, your petitioner states that he has no ANIMOSITY against Justice Soumen Sen and for this reason, he has tendered his UNCONDITIONAL APOLOTY Letter on 22/01/15 when your petitioner had heard from RELIABLE SOURCES that Justice Soumen Sen felt irritated by the letter of your petitioner.
(Copy enclose & marked as A-I).” Reliance Capital Limited has filed this execution application for enforcement of award dated 31st October, 2013 for a sum of Rs.11,37,445.79.
On 2nd September 2014, I have passed an order recording that since the award is less than two years old and the award has not been challenged, the decree holder is entitled to some protective ordeRs.A member of the Bar was appointed as receiver to make inventory and take symbolic possession of the assets and properties of the judgement debtor mentioned in paragraph 22 of the affidavit in support of the Tabular Statement.
On 30th October 2014, I extended the time by a week to implement the order dated 2nd September 2014.
On 18th November 2014, the judgment debtor was represented by Mr.Ranjan Kumar Kali.
The Receiver filed a report.
The matter was made returnable after one week.
On 22nd November 2014, I have recorded that the judgment debtor has filed an application for setting aside the award before the Chief Judge, City Civil Court, Calcutta on 28th February 2014 being Misc.
Case No.725 of 2014 (wrongly typed as Misc.
Case No.75 of 2014).The said application for setting aside, however, could not be heard since the judgment debtor had failed to put in the deficit Court fees.
I have also recorded that the lower Court had fixed 27th November 2014 for putting in the deficit Court fees.
I have further recorded that in the event no steps are taken in the said application, then it shall be presumed that the judgment debtor is not interested to proceed with the setting aside application and the inability of the judgment debtor to put in the deficit Court fees appears to be the cause for delay in disposal of the application under section 34 of the Arbitration and Conciliation Act.
I have further stated that the Receiver shall be in symbolic possession of the property in question for the time being.
Before the returnable date, I have received a letter from Mr.Saumen Sekhar Ghosh.
The said letter was addressed to Mr.Avijit Dey with copies marked to me and to the Security National Judicial Commission, New Delhi, through the Registrar, Hon’ble Supreme Court of India, Tilak Marg, New Delhi.
In the said communication it is stated that by deceiving this Court, Mr.Dey had obtained an ex parte order and this Court has been forced by the said Advocate to record that the award has not been challenged, whereas the truth is that the setting aside application is pending on and from February 2014.
The decree holder was requested to withdraw the execution case.
While forwarding a copy of this letter to me, a request was made to recall the order, allowing both the parties to contest in the City Civil Court.
In the communication made the Security National Judicial Commission, a request was made the said authority to maintain a close watch on/as to this Court as this Court “is acting partially and is biased toward Banks, & N.B.F.C.S.under the aegis of a few solicitors & Advocates.” In view of the aforesaid letter I passed an order on 27th January 2015 expressing my displeasure in the manner in which the letter was written.
Before initiating any proceeding against the said advocate and the judgment debtor, I gave an opportunity to the advocate to explain his conduct.
Mr.Ranjan Kali who represented the judgment debtor appeared on 27th January 2015 and submitted that he had no knowledge about the said order.
The learned Counsel on behalf of the decree holder submitted that Misc.
Case No.725 of 2014 was dismissed on 27th November 2014.
He had also produced a copy of the order, which was taken on record.
On that date Mr.Kali was unable to inform this Court as to whether the setting aside application was restored.
Pursuant to the order dated January 27, 2015 the said advocate appeared and filed a petition which has been summarized in the earlier paragraphs.
In a letter annexed to the said application filed by the contemnor, he has stated that he had no “wilful intention” to hurt this Court anyway and as an advocate he is duty bound to honour the independence and integrity of the judiciary.
So he sincerely apologized not only to this Court but also to the entire Calcutta High Court, both judiciary and bar.
Although the letter forms part of the petition filed by the said advocate, it appears from the statements made in the said petition that it contains matters that are scandalous and tends to lower the authority of this court and interfere with the due couRs.of judicial proceeding.
In order to decide this matter, since it concerns the dignity of this Court I requested Mr.S.N.Mookherjee, a Senior Member of the Bar to assist this Court and appoint him as amicus curie.” By an order dated 17.02.2015 I directed Mr.Ghosh to file an affidavit in response to the submission made by Mr.Kali on behalf of the judgment-debtor that the said judgment-debtor did not instruct Mr.Ghosh to write such letter.
Pursuant to the order dated 17.02.2015 Mr.Saumen Sekhar Ghosh filed an affidavit.
In the said affidavit he has stated : “1) That I am an Advocate practising at City Civil Court Kolkata for writing a letter to Avijit Dey, Advocate for Reliance Capital with a copy to Justice Soumen Sen & Registrar, Supreme Court, Justice Soumen Sen is falsely implicating me.
2) That every citizen of India do have a right to make representations/petitions to the Supreme Court against any one/any authority and for writing such grievance petitions, no officer/Judge across the Territory of India have any right to sue/prosecute him/her for writing such frievance petitions.
Hence, actions taken up by Justice Soumen Sen in order dt.17/02/15 & 04/03/15 of the case is unlawful and not sound by law (Act 321 of the Indian Constitution read with Act 19 of regarding Freedom of Spech & Expenssion).3) That by playing Divide & rule, Justice Soumen Sen wanted to divide me & my client on the point of instruction factor for writing the letter by me posted on 03/12/14.
By criminally intimidating me & my client by ordering to be personally present in court, Justice Soumen Sen not only played as a WHITE COLLAR CRIMINAL but also as a Criminal Trespasser into the Territory of another court/City Civil Court, Kolkata.
Where the case is pending long before the Execution case before your Honour.
4) That I wonder –(i) How can an Executing Court/Justice Soumen Sen exercising Execution powers direct me to serve copies of setting aside application to Mr.Avijit Dey, the Advocate for Reliance Capital by the order dated 04/03/15(copy enclosed)?.
(ii) Is it not a Criminal Trespass on the part of Justice Soumen Sen an Execution Court into the Territory of City Civil Court, Kolkata.
Where Arbitral Award challenging case is pending prior to the filling of Execution Case before Justice Soumen Sen by Reliance Capital Ltd.?.
5) That inspite of knowing Justice Soumen Sen as a cool brained WHITE COLLAR CRIMINAL under the disguise of a Judge, I honourd the orders of Justice Sen by the order dt.
04/03/15 by sending the copies of petitioin to Avijit Dey, Adv.for Reliance Capital LTD.on 12/03/15 by post.
Xerox enclosed & marked as A-2).6) That I also honour Justice Soumen Sen to explain by the order dated 04/03/15 that on 04/03/15 the date of order by Justice Sen, my client came to me and PERSONALLY RECEIVED my bill for the works done by me towards my client at City Civil Court, Kolkata.
The bill itself prove my clients’ instructions to me.
Besides also, IK had sent a bill to Nirbhoy Singh Lodh, the Middle man, who brought the case to me/us working under the unregistered partnership firm LEX JURIS AND ASSOCIATES.
Xerox enclosed & marked as A-3A/3B).7) That I would like to draw-up attentions of the president of India in this regard & would like to request HIS EXCELLENCY to exert his good office to reserve me from the critical position at the hands of Justice Soumen Sen a white collar Criminal/Terrorist & allow me to have a Right to life as contained in Act 21 of Indian Constitution.
8) That I would also like to state the President of India, that I know Arun Jeeitley, Hon’ble Union Finance Minister recently had rushed to London to uncover the VEIL OF MAHATMA GANDHI & hours after the left LONDON for New Delhi where after return he shope to reporters for the fiRs.time about WEST BENGAL, Great Britain had flashed the news about some Judges & U.S.A.had reported for a great bureaucratic reshuffle (Xerox copy of newspaper reports enclosed & marked as A-4A & A-4B).” The judgment debtor also filed an affidavit in which the judgment debtor has specifically stated that he had never met or issued any instruction at any point of time to Mr.Ghosh for taking any step to file any proceeding under Section 34 of the Arbitration & Conciliation Act, 1996.
It is stated that one Sanjay Jha, an advocate practising in Bankshal Court is appointed to take steps for setting aside of the award.
In paragraph 6 of the affidavit it has been categorically stated that he never had instructed Mr.Saumen Sekhar Ghosh to write the impugned letter.
He does not know Mr.Ghosh and had no occasion to interact with him.
The judgment debtor has completely denied that he had issued any instruction to Mr.Ghosh to write the said undated letter to Mr.Avijit Dey, a copy whereof was also marked to me.
Mr.S.N.Mookherjee, learned Senior Counsel appointed as an amicus curie in this matter has submitted before this Court that the letter, the petition as well as the subsequent affidavit filed in this proceeding are scandalous in nature and it prima facie constitute criminal contempt within the meaning of Section 2(c) of the Contempt Act, 1971.
A member of the Bar as an Officer of the Court owes a duty to the Court and must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute.
Attributing improper motive to a Judge or scurrilous abuse of a Judge would amount to scandalizing the Court, resulting in contempt.
In this regard, the learned Senior Counsel has referred to the following decisions of the Hon’ble Supreme Court;(1) Haridas Das versus Usha Rani Banik reported in 2007(14) SCC1(2) Radhe Mohan Lal lversus Rajaman, High Court updated at 2003(3) SCC427(3) Ajoy Kumar Pandey, in re (1998) 7 SCC248(4) Arundhati Roy, in re reported at 2002 (3) SCC343(5) Yoginath D.
Bagde versus State of Maharashtra & Anr.
reported at 1999(7) SCC739(6) R.K.Anand versus Registrar Delhi High Court reported at 2009 (8) SCC106 Mr.Mookherjee submits that an advocate is an officer of the court and he owes a duty to maintain the dignity, decorum and order in the court proceedings and judicial processes.
The contents of the letter, petition and the affidavit are scandalous and an attempt to impasse the administration of justice.
The tendency of “judge bashing” and the use of derogatory and contumacious language against the judges require condemnation.
In dealing with Section 2( c ) of the Act and defining the limits of scandalizing the Court the Hon’ble Supreme Court in D.C.Saxena [1978 (3) SCC339, held as follows;“40.Scandalising the court, therefore, would mean hostile criticism of Judges as Judges or judiciary.
Any personal attack upon a Judge in connection with the office he holds is dealt with under law of libel or slander.
Yet defamatory publication concerning the Judge as a Judge brings the court or Judges into contempt, a serious impediment to justice and an inroad on the majesty of justice.
Any caricature of a Judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice.
It would, therefore, be scandalising the Judge as a Judge, in other words, imputing partiality, corruption, bias, improper motives to a Judge is scandalisation of the court and would be contempt of the court.
Even imputation of lack of impartiality or fairness to a Judge in the discharge of his official duties amounts to contempt.
The gravamen of the offence is that of lowering his dignity or authority or an affront to the majesty of justice.
When the contemnor challenges the authority of the court he interferes with the performance of duties of Judge’s office or judicial process or administration of justice or generation or production of tendency bringing the Judge or judiciary into contempt.
Section 2(c) of the Act, therefore, defines criminal contempt in wider articulation that any publication, whether by words, spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or prejudices, or interferes or tends to interfere with, the due couRs.of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner, is a criminal contempt.
Therefore, a tendency to scandalise the court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt.
The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt.
Any conduct of the contemnor which has the tendency or produces a tendency to bring the Judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.” “60.
The Supreme Court further in the case HARIDAS DAS v.
USHA RANI BANIK, (2007) 14 SCC1laid down as under: 1.
“Judge bashing” and using derogatory and contemptuous language against Judges has become a favourite pastime of some people.
These statements tend to scandalise and lower the authority of the courts and cannot be permitted because, for functioning of democracy, an independent judiciary to dispense justice without fear and favour is paramount.
Its strength is the faith and confidence of the people in that institution.
That cannot be permitted to be undermined because that will be against the public interest.”
2. Judiciary should not be reduced to the position of flies in the hands of wanton boys.
Judge bashing is not and cannot be a substitute for constructive criticism.
………………………………… 13.
The vehemence of the language used is not alone the measure of the power to punish for contempt of court.
The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice.
The stream of administration of justice has to remain unpolluted so that purity of court’s atmosphere may give vitality to all the organs of the State.
Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.
To similar effect were the observations of Lord Morris in Attorney General v.
Times Newspapers [1974 AC273 1973) 3 WLR298 (1973) 3 All ER54(HL)]., AC at p.302.
It was observed that when “unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted.” (All ER p.66f) Mr.S.N.Mookherjee has submitted that the conduct of the contemnor is so grave that it calls for exemplary punishment to be imposed on him.
It is submitted that the view taken by me in relation to the execution proceeding was the correct view and the motive behind writing such letter is to intimate this Court so as to create a pressure on this Court to release the matter.
Mr.Mookherjee has referred to State of West Bengal & ORS.in Associated Contractors reported in 2015(1) SCC32and submitted that the setting aside application could not have been filed before the City Civil Court.
The learned Senior Counsel has referred to a fairly recent decision dated 13.01.2015 of Delhi High Court reported in CONT.
CAS (C) 165/2008 in the matter of (MONTREAUX RESORTS P.
LTD.& ORS.Versus SONIA KHOSLA & ORS.) and draws my attention to paragraph 76 which reads as follows;- “76.
In view of the above, the Show Cause Notice issued by the Division Bench by its order dated 24.04.2014 is disposed of with the following directions: (i) Mr.Deepak Khosla is prohibited from personally appearing and addressing any court in any matter in the Delhi High Court, the District Courts of Delhi, the Company Law Board either as a litigant in person or as an attorney/authorised representative or as an Advocate for a period of one year from today; and (ii) Mr.Deepak Khosla is further prohibited from personally appearing before the Arbitral Tribunal constituted or to be constituted by the Court in the personal litigation of Mr.Deepak Khosla for a period of one year from today; and (iii) Mr.Deepak Khosla is prohibited from filing any application or petition in the Delhi High Court till he furnishes to the Registry the proof of deposit or payment, as the case may be, of the costs imposed by the various orders mentioned hereinabove; and (iv) Mr.Deepak Khosla is prohibited from filing any proceedings in the Delhi High Court or the District Courts of Delhi as an advocate unless the same is filed jointly with an Advocate enrolled with the Bar Council of Delhi.
(v) Mr.Deepak Khosla is at liberty to engage an advocate to represent and appear for him in his personal litigation.” It is submitted that similar directions may be passed in this case as well.
Mr.Mookherjee has submitted that this Court may on the basis of the materials on record either issue a Rule or send the matter to the Hon’ble Chief Justice in terms of Section 14(2) of the Contempt of Courts Act, 1971.
Since it appears to me that the letter, petition as well as the affidavits contain matters that are scandalous and tends to scandalize or lower or tends to lower the authority of this Court and it interferes with the administration of justice, the matter requires to be dealt with by some other Judge lest I may unconciously become partisan since it concerns me.
Even though Section 14 leaves it to the discretion of the Court as to whether the matter should be placed before the Chief Justice for directions regarding trial having regard to sub-section (2) which deals with a particular aspect of natural justice, i.e.no man should be a Judge of his own cause and reminding myself with the prophetic words of Justice Vivian Bose in Sukhdev Singh Sodhi Versus The Chief Justice and Judges of the Pepsu High Court reported at AIR1954SC186which says : “We wish, however, to add that though we have no power to order a transfer in an original petition of this kind we consider it desirable on general principles of justice that a Judge who has been personally attacked should not as far as posible hear a contempt matter which, to that extent, concerns him personally.
It is otherwise when the attack is not directed against him personally.
We do not lay down any general rule because there may be cases where that is impossible, as for example in a Court where there is only one Judge or two and both are attacked.
Other cases may also arise where it is more convenient and proper for the Judge to deal with the matter himself, as for example in a contempt in facie curie.
All we can say is that this must be left to the good sense of the Judges themselves who, we are confident, will comfort (sic) themselves with that dispassionate dignity and decorum which befits their high office and will bear in mind the oft quoted maxim that justice must not only be done but must be seen to be done by all concerned and most particularly by an accused person who should always be given, as far as that is humanly possible, a feeling of confidence that he will receive a fair, just and impartial trial by Judges who have no personal interest or concern in his case.”, I think in all fairness the matter is required to be placed before the Hon’ble Chief Justice.
Accordingly,I directed the Registrar General to place the file before the Hon’ble Chief Justice for such direction as the Hon’ble Chief Justice might think fit to issue.
This Court records its appreciation for the assistance given by Mr.S.N.Mookherjee, the learned Senior Counsel.
The Personal appearance of judgment debtor is dispensed with.
(SOUMEN SEN, J.) GH.