Girish Chandra Gupta, J.
1. This is a petition under Section 9 of the Arbitration and Conciliation Act 1996 (hereinafter referred to as the said act) praying for appointment of a receiver in order to take possession of the assets being the subject-matter of the arbitration agreement with a direction upon him to make over the same to the petitioner or to sell the same; an order of injunction restraining the respondents from dealing with or disposing of the assets being subject-matter of arbitration has also been prayed for. There are two respondents. Both of them are in the state of Haryana. Leave under Clause 12 of the Letters Patent has been prayed for on the basis that part of the cause of action arose within the territorial jurisdiction of this Court.
2. Mr. Banerjee, learned Advocate appearing for the petitioner moved the petition on 20th November 2009 and prayed for leave under Clause 12 of the Letters Patent when the following order was passed:
The petitioner is granted liberty to file a supplementary affidavit disclosing all records which he may have pursuant to the transaction which is the subject matter of this petition. The matter may be listed for hearing on December 4, 2009.
3. Supplementary affidavit disclosing the records, as directed, was not however filed. On the contrary on 4th December 2009 submission was made that leave under Clause 12 was strictly speaking not necessary. The following order was passed:
This is an application under Section 9 of the Arbitration and Conciliation Act, 1996. The respondents are all in the State of Haryana. The learned Advocate appearing in support of this application submitted that no leave under Clause 12 of the Letters Patent is required. He in support of his submission relied on a Division Bench judgment in the case of Dynasty Developers Private Limited v. Jumbo World Holdings Limited reported in 2008(2) Arb.L.R. 249. In the alternative, he submitted that leave under Clause 12 should be granted on the basis of-
a) the allegation contained in paragraph 54 of the petition.
In order to consider the prayer for grant of leave under Clause 12 of the Letters Patent, the petitioner is directed to disclose all documents which he may have in his possession relating to this transaction including correspondence which may have been exchanged between the parties, by way of supplementary affidavit, in order to facilitate the consideration of the question pertaining to the leave under Clause 12, let this matter be listed on December 7, 2009 marked 'For Orders'.
4. On 5th January 2010 when the matter was taken up it transpired that the order dated 4th December 2009 had not been carried out. The submissions made by the learned Counsel appearing for the petitioner were recorded and the order passed on 5th January 2010 was as follows:
The matter was heard on 4th December 2009. A further opportunity was granted on that day to the petitioner to disclose documents and accordingly the matter was adjourned. Today when the matter was taken up, Mr. Banerjee, learned Advocate appearing for the petitioner submitted that his client does not have any documents other than a loan application form and the invoices which he intends to disclose by way of a supplementary affidavit in course of the day.
Let the matter be listed on January 6, 2010 as item No. 1.
5. On 6th January 2010 a supplementary affidavit was filed. The submissions made by the learned Counsel were recorded in the order dated 6th January 2010 which reads as follows:
Ms. Banerjee, learned Advocate appearing for the petitioner, submitted that whatever documents his clients had in his possession with respect to the transaction which is the subject matter of this petition have been disclosed by way of annexures to the petition as also by the affidavit of S. Chatterjee affirmed on 5th January 2010. She further relied upon a judgment in the case of Rajasthan State Electricity Board v. Universal Petrol Chemicals Ltd. reported in : 2009(3) SCC 107 besides the judgment which was relied upon on an earlier occasion that is on 4th December, 2009. Judgment reserved.
6. From the supplementary affidavit dated 5th January 2010 it appears that the petitioner has disclosed copy of a hire purchase agreement dated 24th April 2007 which was already on record by way of an annexure to the petition under Section 9 of the said act. Only other documents disclosed by the petitioner by the supplementary affidavit are (a) copy of an invoice dated 22nd March 2007 by which the equipment forming subject matter of the arbitration agreement was sold by the manufacturer thereof and (b) an application appearing to have been made by the respondents seeking loan. Submission was made by the learned Counsel for the petitioner on 5th January 2010 that the petitioner did not have any other document in his possession which was recorded in the order dated 5th January 2010 quoted above. The same submission was repeated on 6th January 2010 on behalf of the petitioner which was also recorded in the order dated 6th January 2010 quoted above.
7. The first submission made by the learned Counsel appearing for the petitioner is that no leave under Clause 12 of the Letters Patent is necessary. In support of his submission he relied on a Division Bench judgment of the Madras High Court in the case of Dynasty Developers Private Limited v. Jumbo World Holdings Limited reported in 2008(2) ArbLR 249.
8. The second submission is that as a matter of abundant precaution a prayer has been made for leave under Clause 12 of the Letters Patent which should be granted because part of the cause of action arose within territorial jurisdiction of this Court.
9. Two questions therefore arise for determination:
a) whether leave under Clause 12 of the Letters Patent is necessary for institution of a petition under Section 9 of the Arbitration & Conciliation Act 1996 where only a part of the cause of action has arisen within the territorial jurisdiction of this Court?
b) Whether leave in this case should be granted?
10. The decision of the Madras High Court relied upon by the learned Counsel in support of his first submission is based on the following reasoning:
We have given our anxious thought to the submissions made at the bar and the decisions cited before us. We are unable to agree with the view taken by the learned judge that in order to maintain an application under the Act, it is a precondition that the leave under Clause 12 of the Letters Patent should have been obtained. Learned judge has followed the Division Bench judgment of the Calcutta High Court in : AIR 1984 Cal 24 and the judgment of Rebello, J. in : 2002(2) Bom. CR 88 : 2002(2) Arb. LR 432 (Bom.). The attention of the learned judge was not drawn to the later decision of the Calcutta High court in : AIR 1986 Cal 338. Moreover, the learned judge was much concerned and swayed by the words 'if the same had been the subject matter of the suit' appearing in Section 2(1)(e) of the Act. According to the learned judge, the leave would be necessary in case this Court has jurisdiction over the part of the cause of action only and as no suit could be filed without leave, no application under the Act under the similar circumstances could be entertained without leave under Clause 12 of the Letters Patent. The analogy of 'suit' given in Section 2(1)(e) of the Act only gives us guideline to find out the right court. The word 'suit' acts as an indicator and points out which court will be competent court to entertain the application under the Act. Section 2(1)(e) does not treat an 'application' under the Act as a 'suit' and the application under the Act remains an application. As a matter of fact, if a civil suit is filed covering the subject matter of an arbitration agreement, the Act makes it obligatory for the court to refer the parties to arbitration in terms of the arbitration agreement. Therefore, it cannot be contended that the Act intended that an application under the Act and the civil suit should be treated on the same footing. It has been consistently held that the applications under the Arbitration Act cannot be equated with civil suit. See Bhagwat Singh v. State of Rajasthan : AIR 1964 SC 444; Nawab Usmanali Khan v. Sagar Mal AIR 1965 SC 1978; and Firm Ashok Traders v. Gurumukh Das Saluja : (2004) 3 SCC 155 : 2004(1) Arb. LR 141 (SC). The procedure for obtaining of leave is applicable only to a suit and not to an application under the Arbitration Act. In our opinion, if a part of the cause of action has arisen within the jurisdiction of this Court, the application under the Arbitration Act can be instituted in this Court and in that event leave under Clause 12 of the Letters Patent is not necessary.
11. Before I deal with the reasoning given by the Madras High Court it may be pointed out that the Division Bench of the Madras High Court in its judgment in paragraph 5 has recorded that the practice of the Madras High Court in exercise of its ordinary original civil jurisdiction has never been to insist upon leave under Clause 12 of the Letters Patent for institution of an application under Arbitration Act 1940 or an application under Arbitration & Conciliation Act 1996 whereas practice of this Court has always been to the contrary. The law authoritatively laid down by the Division Bench of this Court in the case of Tobu Enterprise Private Limited v. Camco Industries Limited reported in : AIR 1984 Cal 24 is that such leave under Clause 12 of the Letters Patent is necessary.
12. The Division Bench of the Madras High Court preferred to follow a dissenting note struck by a learned Single Judge of this Court in the case of Hindustan Steel Works Construction v. N.V. Chowdhury and Ors. Reported in : AIR 1986 Cal 338. The learned Single Judge tried to find fault with the views expressed earlier by the Division Bench in the case of Tobu Enterprise (supra) on the basis of the following reasoning:
Assuming for the sake of argument that leave under Clause 12 is necessary in Arbitration applications then what would be the result? Then once this Court grants leave to apply and the application is made, this Court will automatically be fixed with the exclusive jurisdiction Under Section 31(4) of the Act and all other courts, which have jurisdiction in the matter will lose the same. In such a case, even if the exparte leave given to the applicant, causes oppression, hardship or injustice to the respondent or the balance of convenience is against retaining the matter in this Court, still this Court will have to retain it.
13. The learned Single Judge obviously missed the matter of importance that the mandate of Section 31(4) of the Arbitration Act 1940 was in favour of a Court competent to entertain a matter which would be evident from the provision of Section 31(4) of the Arbitration Act 1940 which reads as follows:
Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all other subsequent applications arising out of that reference and the arbitration proceeding shall be made in that Court and in no other court.
14. If the leave under Clause 12 of the Letters Patent is revoked then it would follow that this Court was not competent to entertain the petition under the Arbitration Act and in that event all subsequent steps would have to be taken in the competent Court and the first application or petition made before the competent Court shall be the Court vested with exclusive jurisdiction under Section 31(4) of the Arbitration Act 1940. Therefore the apprehension expressed by the learned Single Judge is, with respect, not well founded.
15. The learned Single Judge of this Court in the above case also appears to have adopted the following reasoning:
It has been observed in some cases that where leave under Clause 12 is necessary, leave is the 'foundation of the jurisdiction' of the court to try the matter, what does it mean? Does it mean that without leave, this Court lacks inherent jurisdiction? In my opinion, leave cannot be the 'foundation of jurisdiction'. Such expressions are loosely made. Unless this Court has inherent jurisdiction over part of the cause of action in the suit this Court cannot grant leave under Clause 12. Therefore, the existence of inherent jurisdiction of the court over the suit must be admitted before leave is obtained. Hence leave cannot be the foundation of jurisdiction. Testing from another angle, the theory that 'leave is the foundation of jurisdiction' seems baseless and absurd. Certainly, it cannot be contended that this Court by granting leave confers upon itself the jurisdiction to try the suit and can again divest itself of this jurisdiction by revoking the leave. It is an absurd proposition to suggest that a civil court has discretion of conferring jurisdiction upon itself and also divesting itself of it. In my opinion, by granting leave, the court only exercises its discretion to take up the whole suit.
16. It can be pointed out, with respect, that the learned Single Judge has failed to notice the distinction between inherent jurisdiction and territorial jurisdiction. These are two different factors. And the third factor is pecuniary jurisdiction. All of them must co-exist before a suit can be received by this Court for trial and determination. The inherent jurisdiction of this Court flows from the authority given in Clause 12 of the Letters Patent 'shall be empowered to receive, try and determine suits of every description'. The authority with respect to territorial jurisdiction where only a part of the cause of action arose within is to be found in the following portion of Clause 12' in case the leave of the Court shall have been first obtained'.
17. Reference in this regard may be made to the judgment in the case of Subhash Mahadevasa Habib v. Nemsa Ambasa Dharmadas and Ors. reported in 2007(13) SCC 650:
The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. Whereas an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied.
18. Reference may also be made to the judgment in the case of Harshad Chiman Lal Modi v. DLF Universal Ltd. and Anr. reported in : 2005(7) SCC 791 wherein the following view was expressed:
We are unable to uphold the contention. The jurisdiction of a Court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.
19. The views expressed by the Madras High Court quoted above are patently contrary to the views taken by the Division Bench of this Court in the case of Tobu Enterprise (supra) wherein the following view was expressed:
There can be no doubt that a suit is not instituted by filing an application under Section 20 of the Arbitration Act, although the application is numbered and registered as a suit. But the jurisdiction of the Court to entertain such application will depend upon as to whether if the questions involved in the application or the matter to which the reference relates had been the subject-matter of a suit, the Court has jurisdiction to entertain such questions or matter. In other words, if the application is treated as a suit, whether the Court has jurisdiction to entertain and try such a suit. It is true that the application under Section 20 of the Arbitration Act is not a suit, but the jurisdiction of the Court will have to be decided on the basis that if it has been a suit, whether the Court would have jurisdiction to entertain and try the suit. This is manifestly clear from the provisions of Sections 2(c) and 31 of the Arbitration Act. So far as Courts other than the chartered High Courts are concerned, the Civil P.C. governs the question of jurisdiction to entertain a suit and, in the case of Chartered High Courts the provision of the Letters Patent. So we are unable to subscribe to the view of the learned Judge in the case of S.P. Consolidated Engineering Co. (P) Ltd. : AIR 1966 Cal 259 (supra) that because an application under Section 20 of the Arbitration Act is never treated as a suit within the meaning of Clause 12 of the Letters Patent, it is not imperative to obtain leave under Clause 12, even though only a part of the cause of action arises within the ordinary original jurisdiction of this Court. To accept the above view of the learned Judge will be, in our opinion, contrary to the provisions of Sections 2(c) and 31 of the Arbitration Act. In Das Consultant Pvt. Ltd. v. N.M.D. Corporation : AIR 1981 Cal 202, the same view as in the case of S.P. Consolidated Engineering Co. (P) Ltd. (supra) has been expressed by another learned Single Judge of this Court, and for the reasons as already given, we are unable to accept the same.
In the circumstance, we hold that where the cause of action arises in part only within the ordinary original jurisdiction of this Court, an application under Section 20 of the Arbitration Act can only be filed in this Court after first obtaining leave under Clause 12 of the Letters Patent. In other words, in such cases, leave under Clause 12 is imperative.
20. I had occasion to consider this question in the case of LT Finance Limited v. Ravi Kumar and Anr. In AP No. 274 of 2009 and GA No. 2915 of 2009 wherein I had expressed the following views:
It would appear that this Court in exercise of its ordinary original civil jurisdiction can receive, try and determine a suit in cases where the cause of action has arisen within the local limits of the ordinary original civil jurisdiction in part provided leave of the Court is first obtained. What follows is that had the subject-matter of the application under Section 9 been the subject-matter of a suit this Court would have no jurisdiction to receive, try and determine the same except by leave under Clause 12 of the Letters Patent. The natural corollary is that an application under Section 9 would also not be entertainable by this Court when the cause of action has arisen within the jurisdiction of this Court only partly. If the jurisdiction of this Court has to be invoked then leave has to be obtained before commencement of the application. An application in order to become entertainable by this Court has to be viewed as a suit which is clearly discernible from the definition under Section 2(e) quoted above 'if the same had been subject matter of a suit'. It is therefore not correct to say that leave under Clause 12 of the Letters Patent is not necessary for institution of an application under Section 9 of the Arbitration and Conciliation Act 1996. I am also supported in my view by a Division Bench Judgment in the case of Tobu Enterprises Private Limited v. Camco Industries Limited reported in : AIR 1984 Cal 24.
21. In the case of H.H. the Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. State of Rajasthan reported in : AIR 1964 SC 444, referred to by the Madras High Court, the question which fell for a decision was whether permission of the Central Government under Section 86 of the Code of Civil Procedure was required before issuing a rule on a foreign state for initiating industrial dispute before the tribunal. In that context Their Lordships held 'a proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of dispute ordinarily triable in a Civil Court, would prima facie not be regarded as falling within Section 86 Code of Civil Procedure.
22. Consent of the Central Government is mandatorily required under Section 86 of the Code of Civil Procedure before any suit is instituted against a foreign ruler. Based on the aforesaid judgment it can be said that any proceeding triable in a Civil Court tantamounts to a suit irrespective of whether it started with a plaint or a petition. The expression 'suit' has not been defined in the Civil Procedure Code. The word 'suit' has however acquired a special meaning in the legal parlance part of which may be due to the provision in Order IV Rule 1 of the Civil Procedure Code which provides that 'suit to be commenced by plaint'. There are however suits like matrimonial suit and probate suit commenced by a petition. Originating summons also commenced by a petition is another example. Therefore the expression 'suit' used in Clause 12 of the Letters Patent does not mean according to me anything more than a cause triable in the exercise of ordinary original civil jurisdiction of this Court. I am emboldened to proceed on the basis that I am supported in my view by the aforesaid decision of the Apex Court. In substance a suit and a petition has always been understood by the common man to mean the same thing which would be evident from the use of the expression 'suit' and 'petition' to be found in the Bible.
'Petition'- Esther, Chapter 5
'6': And the king said unto Esther at the banquet of wine, What is thy petition? and it shall be granted thee: and what is thy request? Even to the half of the kingdom it shall be performed.
'7': Then answered Esther, and said, My petition and my request is;
'8': If I have found favour in the sight of the king, and if it please the king to grant my petition, and to perform my request, let the king and Haman come to the banquet that I shall prepare for them, and I will do tommorow as the King hath said.
Chapter 7:
'2': And the king said again unto Esther on the second day at the banquet of wine, What is thy petition, queen Esther? and it shall be granted thee: and what is thy request? and it shall be performed, even to the half of the kingdom.
'3': Then Esther the queen answered and said, If I have found favour in thy sight, O king, and if it please the king, let my life be given me at my petition, and my people at my request:
'Suit'- 2 Samuel, Chapter 15
'4': Absalom said moreover, on that I were made judge in the land, that every man which hath any suit or cause might come unto me, and I would do him justice!
The Book of Job, Chapter 11
'9': Also thou shalt lie down, and none shall make thee afraid; yea, many shall make suit unto thee.
23. In the case of Nawab Usmanali Khan v. Sagar Mal reported in AIR 1965 SC 1978, also referred to by the Madras High Court, the question which fell for a decision was whether a proceeding under Sections 14 and 17 of the Arbitration Act 1940 would attract the bar of Section 86 of the Code of Civil Procedure and Their Lordships held as follows:
Now, a proceeding under Section 14 read with Section 17 of the Indian Arbitration Act, 1940 for the passing of a judgment and decree on an award does not commence with a plaint or a petition in the nature of a plaint, and cannot be regarded as a suit and the parties to whom the notice of the filing of the award is given under Section 14(2) cannot be regarded as 'sued in any Court otherwise competent to try the suit', within the meaning of Section 86(1) read with Section 87B, Code of Civil Procedure.
24. Both these judgments I am inclined to think strengthen the view taken by the Division Bench of this Court in the case of Tobu Enterprises (supra).
25. In the case of Firm Traders and Anr. v. Gurumukh Das Saluja and Ors. reported in : 2004(3) SCC 155, also referred to by the Madras High Court, Their Lordships of the Apex Court held prima facie that an application under Section 9 would not be hit by the provisions of Section 69 of the Partnership Act 1932 which forbids an unregistered partnership firm from seeking to enforce contractual obligation. Their Lordships did not intend to lay down any definite law in that regard as would appear from paragraph 12 of the judgment which reads as follows:
In our opinion, which we would term as prima facie, the bar enacted by Section 69 of the Partnership Act does not affect the maintainability of an application under Section 9 of the A & C Act.
26. It cannot therefore be said that in the case of Firm Traders any definite opinion as regards the non-applicability of Section 69 of the Partnership Act 1932 to a petition under Section 9 of the Arbitration & Conciliation Act 1996 was expressed.
27. The views expressed by the Division Bench of this Court in the case of Tobu Enterprise (supra) are not only binding upon me but also are logical and preferable. Any view contrary to what was held by the Division Bench can only be taken by a larger bench. The law in this Court is and has been that leave under Clause 12 is necessary where only a part of the cause of action has arisen within the territorial jurisdiction of this Court for institution of an application under the Arbitration Act. Therefore the first question is answered in the affirmative.
28. The second question is as regards the propriety of grant of leave under Clause 12 of the Letters Patent. The petitioner deliberately mis-interpreted the order dated 4th December 2009. The direction passed by this Court on 4th December 2009 has also been deliberately mis-interpreted as would appear from paragraph 3 of the supplementary affidavit affirmed by Shuvadip Chatterjee on 5th January 2010 which reads as follows:
On December 4, 2009 the said application being A.P. No. 510 of 2009 was taken up for hearing by the Hon'ble Justice Girish Chandra Gupta when His Lordship was pleased, inter alia, to grant leave to the petitioner to use a supplementary affidavit to file some additional documents and/or to incorporate some additional facts which had not been mentioned in the application being A.P. No. 510 of 2009.
29. The submission made by the Counsel recorded in the orders dated 5th January 2010 and 6th January 2010 noticed above is that except for the documents already filed by way of an annexure to the petition and except for the invoice issued by the manufacturer of the equipment which is the subject matter of the arbitration agreement and except for an application made by the respondents seeking financial assistance no other document is available with the petitioner pertaining to this transaction. This stand of the petitioner is on the face of it untrue and incorrect. In paragraph 9 of the petition the petitioner has alleged that 20 installments were paid by the respondents to the petitioner. Therefore at least 20 counter-foils of the receipts granted by the petitioner to the respondents should be there with the petitioner which he cannot be heard to say are not in his possession. In paragraph 10 of the petition it has been alleged that demand for payment were made both verbally and in writing repeatedly. Therefore copies of those demands made repeatedly in writing should be with the petitioner which ought to have been disclosed pursuant to the order of the Court.
30. I am convinced that the deliberate mis-interpretation of the order dated 4th December 2009 and the wilful withholding of the documents are both aimed at flouting the order of court. A litigant who wilfully violates the order of Court can have no right of audience nor can he get any assitance of the Court until he has complied with the orders of Court. If any authority is needed reference may be made to the judgment in the case of Prestige Lights Ltd. v. State Bank of India reported in : 2007(8) SCC 449.
An order passed by a competent court-interim or final-has to be obeyed without any reservation. If such order is disobeyed or not complied with, the court may refuse the party violating such order to hear him on merits. We are not unmindful of the situation that refusal to hear a party to the proceeding on merits is a 'drastic step' and such a serious penalty should not be imposed on him except in grave and extraordinary situations, but sometimes such an action is needed in the larger interest of justice when a party obtaining interim relief intentionally and deliberately flouts such order by not abiding by the terms and conditions on which a relief is granted by the court in his favour.
In the leading case of Hadkinson v. Hadkinson the custody of a child was given to the mother by an interim order of the Court, but she was directed not to remove the child out of jurisdiction of the Court without the prior permission of the court. In spite of the order, the mother removed the child to Australia without prior permission of the Court. On a summons by father, the Court directed the mother to return the child within the jurisdiction of the Court. Meanwhile, an appeal was filed by the mother against that order. A preliminary objection was raised by the father that as the appellant was in contempt, she was not entitled to be heard on merits. Upholding the contention and speaking for the majority, Romer, L.J. observed: (All ER p.572 C).I am clearly of the opinion that the mother was not entitled, in view of her continuing contempt of court, to prosecute the present appeal and that she will not be entitled to be heard in support of it until she has taken the first and essential step towards purging her contempt of returning the child within the jurisdiction.
In a concurring judgment, Denning, L.J. also stated: (All ER p.575 C-D)
The present case is a good example of a case where the disobedience of the party impedes the course of justice. So long as this boy remains in Australia, it is impossible for this Court to enforce its orders in respect of him. No good reason is shown why he should not be returned to this country so as to be within the jurisdiction of this Court. He should be returned before Counsel is heard on the merits of this case, so that, whatever order is made, this Court will be able to enforce it. I am prepared to accept the view that in the first instance the mother acted in ignorance of the order, but nevertheless, once she came to know of it, she ought to have put the matter right by bringing the boy back. Until the boy is returned, we must decline to hear her appeal.
That, however, does not mean that in each and every case in which a party has violated an interim order has no right to be heard at all. Nor will the court refuse to hear him in all circumstances. The normal rule is that an application by a party will not be entertained until he has purged himself of the contempt. There are, however, certain exceptions to this rule. One of such exceptions is that the party may appeal with a view to setting aside the order on which his alleged contempt is founded. A person against whom contempt is alleged must be heard in support of the submission that having regard to the meaning and intendment of the order which he is said to have disobeyed, his actions did not constitute a breach of it.
In Gordon v. Gordon, Cozens-Hardy, L.J. put the principle succinctly in the following words: (All ER p.706 E-F).I desire to limit my judgment to a case in which the [party in contempt is saying] that the order complained of is outside the jurisdiction of the court, as distinguished from the case of an order which, although it is within the jurisdiction of the court, ought not, it is said, to have been made.
Lord Denning made the following pertinent observations in Hadkinson: (All ER pp.574 H-575A)
It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.
There is still one more reason why the appellant Company should be denied equitable relief under Article 136 of the Constitution. According to the respondent Bank, the appellant has not come with clean hands before the Bank. It has suppressed and concealed material facts from the Court.
31. Under Clause (g) of Section 114 of the Evidence Act Court is entitled to presume 'that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it'.
32. The judgment in the case of Rajasthan State Electricity Board v. Universal Petrol Chemicals reported in : 2009(3) SCC 107 pertaining to the value of a forum selection Clause can only be considered after the orders dated 20th November 2009 and 4th December 2009 are carried out by the petitioner.
33. Let the matter go out of the list. Liberty to mention after complying with the aforesaid orders.
34. Urgent xerox certified copy of this judgment, be delivered to the learned advocates for the parties, if applied for, upon compliance of all formalities.