A.H. Wheeler And Co. Ltd vs Bank Of Baroda And Ors

P.K. Bhasin, J

A myth which appears to have entered into the minds of the litigants appearing before the Debts Recovery Tribunals (DRTs) as well as Debt Recovery Appellate Tribunals (DRATs), established under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ('RDDBFI Act' in short), to ensure speedy recovery of monies payable to Banks and other Financial Institutions by their defaulting borrowers, is that these Tribunals are 'toothless paper tigers'. This myth needs to be washed off completely and by the present order I will be attempting to do that so that majesty of DRTs/DRATs is maintained. The question which is going to be decided by this order is as to how these Tribunals can ensure the implementation of any 'direction' given by them to any of the parties before them so that the 'direction' given is not treated by the concerned litigants, be it the borrowers or the Banks or for that matter any other person, as a 'paper tigers' only.

On the aspect of the powers of this Tribunal to ensure that its directions/orders are given effect to in letter and spirit, I had heard the learned Counsel for all the parties, including the appellant who was given some 'direction' by this Tribunal during the course of hearing of this appeal which is against one order passed by the DRT whereby during the pendency of the respondent No. 1 Bank's Original Application under Section 19 of the RDDBFI Act for the recovery of its dues over four crores of rupees from the appellant Company (Corporate Guarantor) and respondent No. 2 herein (borrower Company) and respondents 3 to 5 being individual guarantors for the repayment of loan advanced to the said borrower Company, the DRT had directed the applicant Bank to sell, before even issuance of a Recovery Certificate in favour of the Bank, its mortgaged asset mortgaged in its favour by the appellant/guarantor/mortgagor, by way of a 'private treaty'. The mortgaged property was then sold for Rs. 1.38 crores. Feeling aggrieved by the deprivation of its property in that manner the appellant/guarantor/mortgagor had approached this appellate Tribunal by invoking the remedy of Appeal under Section 20 of the RDDBFI Act.

Now, the direction given to the appellant by this Tribunal on 29.5.2017 was to deposit Rs. 1.38 crores with the Registrar of this Tribunal before this Tribunal gives any verdict on the issues arising for decision in this appeal by this Appellate Tribunal. It is that direction which has been disobeyed by the appellant.

The relevant factual background facts of the matter leading to the filing of the present appeal and passing of the aforesaid direction to the appellant for compliance were narrated in some detail in my order dated 29.5.2017 and 1 deem it appropriate to re-produce here the relevant paras only from that order which read as under:

"This appeal is against the following miscellaneous order passed on 13th May, 2015 by the then Presiding Officer Shri K. Asoken of Debts Recovery Tribunal-II, Delhi ('DRT' in short) in an Original Application No. 77 of 2004 filed by respondent No. 1 Bank of Baroda:-

"O.A. No. 77/04

BOB versus WHEELER LEATHER CORPORATION LTD. & ORS.

Dated: 13.5.2015

Present-Mr. Arun Aggarwal, Counsel for the applicant-Bank

Mr. S.K. Tanwar, Counsel for the defendants No. 1

Mr. O.P. Mathur, Counsel for the defendant Nos. 2, 3, 4 and 5

Mr. Anand Sanajy, Counsel for defendant No. 7

Ms. Usha Singh, Counsel for defendant No. 6

Defendant No. 1 has filed IA No. 215/15. Heard Counsel for Bank and Counsel for defendants.

The applicant has filed valuation report in respect of the mortgaged property and there are three valuations. They are--Market value of the property Rs. 1.38 crores approximately, Realizable market value Rs. 1.15 crores approximately and Distress value Rs. 1.00 crores approximately. The defendant says that he wants to redeem the property for Rs. 1.38 crores approximately and he says that this amount can be deposited immediately if the Court so directs and he is even armed with a demand draft of Rs. 30 lacs to prove his bona fide. Counsel for defendant No. 5 states that the property can be sold only in public auction and that is the stand taken by defendant No. 5.

Counsel for the applicant Bank submits that the claim amount in the OA is Rs. 3,76,98,186/- and once the defendants are praying for redemption for the sum of Rs. 1.38 crores as requested by the defendants does not arise at all. The Counsel for the applicant Bank is correct but the fact remains that the Bank has assessed the market value of the property at Rs. 1.38 crores approximately. Even if a recovery certificate is obtained and the Bank proceeds against the mortgage property it has to be kept for sale fixing the reserve price ordinarily at the distress value or on the realizable market value and therefore and the Bank's condition would be little precarious. Now the Bank gets an opportunity to have liquid cash at the earliest if the property is sold at the earliest possible and if the man suggested by defendant is allowed to purchase the property the Bank gets easy recovery. Now there is consent by borrower to sell the property for Rs. 1.38 crores to the person produced by the borrower. In such circumstances the applicant Bank is directed to sell the property by private treaty as expeditiously as possible as and not later than 15 days. Bank shall be at liberty to appropriate the sale proceeds toward the loan account. After sale, sale certificate shall be issued and the title deeds shall be released to the purchaser of the property.

Applicant has exhibited the power of attorney as PW1/133 (OSR). Posted to 2.6.2015.

Issue order Dasti to applicant Bank as well as defendant No. 1.

(K. ASHOKAN)

Presiding officer

DRT-II, Delhi"

This order of sale of the property mortgaged with the Bank by the appellant Company, as per the appellant's case, was wrongly passed by the Presiding Officer of the DRT at the final stage of the O.A. without prior adjudication of the disputes raised in the O.A. by the contesting parties and in fact amounts to being a perverse order having been passed in undue haste by the Presiding Officer of the DRT and the applicant Bank's officials also acted post haste in rushing to sell the appellant's property even though it had opposed the application of the borrower Company inter alia on the ground that the O.A. itself was at the far end and could be finally disposed of and since there was no real opposition to the claim of the Bank even recovery certificate for the amount being claimed by the Bank could have been issued and then the mortgaged property could be ordered to be sold by open auction by the Recovery Officer in execution proceedings.

The background facts relevant for the disposal of this appeal and which led to the filing of the O.A., by the Bank and passing of the impugned order are that The Benares State Bank of India, which came to be amalgamated with Bank of Baroda, respondent No. 1 herein reference to which Bank shall be made hereinafter as 'the applicant Bank') in June, 2002, had extended various financial facilities during 1997-98 to respondent No. 2 herein, M/s. Wheeler Leather Corporation Ltd. (hereinafter to be referred to as 'the borrower Company')- The said borrower Company had created second charge in respect of its land situated at Khewat No. 9, Khata No. 20 Min. Kila No. 56/15-2-1(5-16), 16(8-0), 25(8-0) in Village Pathreri, Near Bilaspur Chowk, District Gurgaon, Haryana to secure the re-payment of loan amounts given to it by the erstwhile The Benares State Bank of India. First Charge over this property was stated to have been created by the borrower Company in favour of respondent No. 6 herein, Industrial Development Bank of India (IDBI), from whom also it had obtained some financial facilities.

The appellant A.H. Wheeler & Co. Ltd. (hereinafter to be referred as 'the guarantor/mortgagor Company') had given Corporate Guarantee and also created equitable mortgage of its land in Khewat No. 9, Khatta No. 20 min, Kila No. 64/5/1(6-13) 5/2(1-7) 6/1(2-0) 6/2(6-0) and 63/10(1-12) admeasuring 17 Kanals 24 Marias i.e. 2.20 acres situated at Village Pathreri, near Bilaspur Chowk, Tehsil and District Gurgaon, Haryana (hereinafter to be referred as the 'mortgaged property of the guarantor/mortgagor Company') to secure the repayment of the financial facilities extended to the borrower Company in which the appellant Company and respondents 3 to 5 together had 100% share holding. Respondent No. 5 is dead and is being represented by his legal representatives.

The applicant Bank had filed Original Application No. 77/2004 before the DRT under Section of 19 of the Recovery of Debts from Banks and Financial Institutions Act, 1993 ('RDDBFI Act' in short) for recovery of its total outstanding dues in various accounts of the borrower Company which were to the tune of Rs. 3,76,98,186.60 and interest thereon @ 17.50% per annum compounded monthly along with costs throughout from the date of institution of the O.A. till actual realisation. The O.A. was filed primarily against the appellant herein, which was impleaded as defendant No. 5 in the O.A. being the Corporate Guarantor and mortgagor of its land in Gurgaon, the borrower Company and respondents 3 to 5, being the Directors of the borrower Company and also its guarantors........

5A. It is case of the appellant Company that since the borrower Company was not doing well in business a deal was struck with one Nilesh Kumar and Associates (NKA) in the year 2003 where under the said NKA had agreed to buy the borrower Company and also to get the appellant Company and its Directors, absolved of all their liabilities towards the applicant Bank and then to get the mortgaged properties released. With the taking over of the management of the borrower Company new Group came to take over the management of the borrower Company and Nilesh Kumar, who is not a party in this litigation, became its Managing Director. The borrower Company under the control of Nilesh Kumar cleared its dues of the IDBI Bank only and got released the land mortgaged by it in favour of this Bank and then sold the same to M/s. Stumpp Schuele & Somappa Pvt. Ltd., impleaded in this appeal as respondent No. 7.

The O.A. was filed way back in the year 2004 and is still pending before the DRT and the present appeal has been filed by the guarantor/mortgagor Company against a miscellaneous order only passed by the learned Presiding Officer of the DRT on 13th May, 2015 whereby the mortgaged property of the guarantor/mortgagor Company had been permitted to be sold by the Bank by way of a private treaty without first adjudicating the disputes raised by the contesting parties in the Bank's O.A. and, it is the grievance of the appellant that the impugned direction for sale was given to the Bank when the borrower Company itself had not even prayed for the sale of that property by private treaty and all that it had requested the DRT was to permit the borrower Company to redeem the mortgaged property which was mortgaged by the appellant Company. As a consequence of the permission granted by the learned Presiding Officer vide impugned order dated 13th May, 2015 and the mortgaged property of the guarantor/mortgagor Company was sold in utmost haste by the applicant Bank, who had opposed passing of this kind of an order and that too at the fag end of the trial, to respondent No. 8 in this appeal, M/s. Welco Distillery Pvt. Ltd. (hereinafter to be referred as 'the buyer Company') for a sum of Rs. 1,38,00,000/- and a sale certificate also stands issued in its favour on 1st June, 2015. The applicant Bank which had opposed I.A. No. 215/2015 on the ground that such a direction could not be given in the midst of the trial chose not to challenge that order and instead gladly complied with the direction of the DRT and, as per the case of the appellant, that haste shown by the Bank's officials was a result of collusion between the Bank officials and the borrower Company under the new management headed by Nilesh Kumar. In fact, before this Tribunal the Bank has taken the stand that on 13.5.2015 the entire O.A. itself could have been allowed in its favour as evidence had already been adduced and also because the appellant Company and its three Directors had not even contested the Bank's claim in their joint written statement and the only pleas raised by them were centering around the inter se disputes between the old management and new management regarding implementation of the terms of the deal struck between them in the year 2003.

When the O.A. proceedings were nearing conclusion, the borrower Company through its new Managing Director Mr. Nilesh Kumar moved a miscellaneous application, being I.A. No. 215/2015, before the DRT seeking permission to redeem the mortgaged property of the guarantor/mortgagor Company, the appellant herein, claiming itself to be the owner thereof. It is the case of the appellant urged before me on behalf of the appellant Company at the time of hearing that even though the applicant Bank had pretended to oppose this application in its reply but as per the prior understanding between Mr. Nilesh Kumar and some Bank officials no objection was raised on behalf of the applicant Bank for the acceptance of the request of the borrower Company for redemption of the mortgaged property of the guarantor/mortgagor Company when on 13th May, 2015 the said application came to be taken up by the Presiding Officer. As noticed already, and as was urged before me on behalf of the appellant Company, even though the borrower Company had simply sought to redeem the property which was mortgaged by the appellant Company but the learned Presiding Officer instead of examining the position in law regarding redemption of mortgaged properties and whether DRTs have any role in the exercise of right of redemption by any mortgagor, himself converted the application into one seeking direction to the Bank to straightaway proceed to sell the property by way of a private treaty and not only that he in fact passed that direction which had not even been sought by the applicant/defendant No. 1 in the O.A. Thereafter, the mortgaged property of the guarantor/mortgagor Company was sold by the Bank to respondent No. 8 Company and with that sale, according to the case of the appellant Company, the big mission allegedly of the borrower Company under the management of Nilesh Kumar and the applicant Bank under the umbrella of the DRTs order came to be accomplished and the liability of the borrower Company came to be reduced by Rs. 1,38,00,000/- out of the total amount of almost four crores of rupees which had been claimed in the O.A. as the principal amount and the interest was also being claimed on that amount at the contractual rate which has been noticed already. The applicant Bank's case is that it had simply complied with the directions of the DRT even though earlier it had opposed the application of the borrower Company for redemption of the mortgaged property and that it was not concerned with the inter se disputes between the old and the new management of the borrower Company and for the recovery of its balance dues it will continue to prosecute its O.A. with full seriousness and pray before the DRT for passing of recovery certificate for the entire amount claimed in the O.A. and if passed steps will be taken for recoveries against all the parties found to be liable to make the payment to the Bank including the borrower Company even under the new management headed by Nilesh Kumar.

The grievance of the appellant Company is that the borrower Company in collusion with the Bank officials has been successful in selling the appellant Company's land without even it getting an opportunity to oppose the said move of Nilesh Kumar with whom the deal/agreement was that before getting the mortgaged property of the guarantor/mortgagor Company in Gurgaon he was to get the appellant Company as wel 1 as its three Directors, all of whom had given guarantee for the re-payment of the dues of the applicant Bank, discharged of their liabilities for which the applicant Bank had sued them also in its O.A. which he did not do even after-receiving payment of Rs. 1.25 crores from the appellant Company and its three Directors and clandestinely managed to get their property sold and that too at a low price and has left all the four guarantors of the applicant Bank high and dry and left in this battle to continue to defend the Bank's balance outstanding dues which would still run into crores of rupees considering the fact that the rate of interest being charged by the Bank is unconscionably exorbitant and amount realised from the sale of the appellant's property is too small.

The borrower company and the buyer, both of whom are the beneficiaries of the impugned order have opposed this appeal primarily on the ground that the appellant Company is putting before this Tribunal a distorted version of the agreement between it and Nilesh Kumar whereunder the management of the borrower Company was to get transferred to the new Group under the leadership of Nilesh Kumar inasmuch under that agreement all that was agreed to between the parties to that agreement was that the share holding of the appellant Company as well as its Directors in the borrower Company will only be transferred to Nilesh Kumar and his Group and not that Nilesh Kumar had taken over the liabilities of the appellant Company and the Directors towards O.A. applicant Bank of Baroda. It is also the case now being projected by these respondents is that the appellant Company through one of its Directors, who was duly authorised by way of a Board resolution, had appointed Mr. Nilesh Kumar to act as its attorney in respect of its assets including the one which was mortgaged with the erstwhile The Benares State Bank of India now Bank of Baroda) and, therefore, when Mr. Nilesh Kumar had moved LA. No. 215/2015 before the DRT he was acting as the attorney of the appellant Company/mortgagor and the appellant Company cannot now permitted to contend that that application at the instance of Mr. Nilesh Kumar was not maintainable. The further stand of these respondents is that the appellant Company had intentionally not disclosed to this Tribunal that it had executed a power of attorney in favour of Mr. Nilesh Kumar and which power of attorney it would not have executed if actually all its rights and interest in the property mortgaged by it had not stood transferred in favour of the borrower Company under the new management.

The learned Counsel for the appellant did not dispute either during the course of oral arguments as or in its written arguments, the execution of a power of attorney by the appellant Company in favour of Mr. Nilesh Kumar as was being claimed on behalf of the borrower Company. Its case is that Mr. Nilesh Kumar had not moved I.A. No. 215/2015 in his capacity as the attorney of the appellant Company (defendant No. 5 before the DRT) and, therefore, that application was not an application of the guarantor/mortgagor Company, appellant herein.

After having crystallised the entire factual position which was considered to be relevant for the present purpose, I have come to form a prima facie view that appellant itself can be said to have brought itself to a situation where its property has gone out of its hands. The impugned order was passed in the presence of its Counsel and at that time no objection appears to have been raised that such a course of action as was sought to be adopted by the borrower company was permissible in law. However, the question whether the DRT in an O.A. of a Bank can at the fag end of the proceedings, direct the Bank to sell the mortgaged properties just because some private parties are willing to purchase the same without proceeding to finally dispose of the O.A. and passing a recovery certificate in favour of the Bank and requiring the Recovery Office to proceed to sell the mortgaged properties will need to be examined and answered. Because of the appellants' own conduct, as noticed above, its property has come to be sold, may be by way of a private treaty, and a third party has entered the scene who has also paid a huge amount of Rs. 1.38 crores to the Bank for purchasing the property mortgaged by the appellant company. In these circumstances, I am of the view that before proceeding further to finally decide the fate of this appeal, the appellant company should be directed to deposit with this Tribunal an amount of Rs. 1.38 crores which the private buyer has paid to the Bank to purchase the mortgaged property.

Accordingly, the appellant is directed to make a deposit of Rs. 1.38 crores with this Tribunal in the form of a Bank draft in the name of Registrar, DRAT, Delhi, within a period of one week and thereafter further orders will be passed in the matter."

(Emphasis supplied now)

The appellant, however, did not comply with the said direction given to it by this Tribunal. Noting that non-compliance this Tribunal passed the following order on 6.6.2017:

"The appellant has not complied with the direction of this Tribunal given to it on 29.5.2017 for depositing a sum of Rs. 1.38 crores with the Registrar of this Tribunal. The learned Counsel for the appellant submits that he could not contact the concerned officials of the appellant company within this short period and, therefore, he may be given some more time to have necessary instructions from the appellant as to what course of action they intend to adopt in view of the aforesaid direction of this Tribunal.

Further time of one week is granted for compliance of the aforesaid direction.

Re-notify on 28.6.2017."

Instead of complying with the direction of this Tribunal even within the extended period for compliance the appellant moved a review application before this Tribunal, being I.A. No. 483/2017. In that application the appellant instead of justify ing disobedience of the direction of this Tribunal sought to blame the Tribunal for passing an illegal order. It was pleaded in the review application that the order dated 29th May, 2017 "is absolutely bad in law.........". Then it was pleaded that "There was no occasion to pass any direction to pay an amount by the appellant for purchase of his own property.........and direction to deposit the said amount by the appellant means purchase of said property by the appellant, which could not be ordered.......The reason for deposit of amount of Rs. 1.38 crores by the appellant, as given by this Hon'ble Tribunal........is absolutely irrelevant". The review application was, however, dismissed by this Tribunal on 28.6.2017 which order is also reproduced below:

"I.A. No. 483/2017

This is an application filed by the appellant for review of my order dated 29.5.2017 whereby they were directed to make a deposit of Rs. 1.38 crores with this Tribunal in the form of a Bank draft before their grievances are considered and a decision is given thereon. The submission of the learned Counsel for the review petition in no such condition could have been imposed by this Tribunal upon the appellant since that would amount to telling the appellant to purchase his own property very sale of which in an illegal manner by the Bank inform of a private party has been challenged by the appellant in the main appeal against the order of the DRT permitting sale of appellant's property by the Bank inform of a private party at the instance of respondent No. 2, herein.

In my view, for the reasons being given in the review petition, no case is made out for review of the order dated 29.5.2017 and in case the appellant felt that the impugned direction for deposit of money by it could not have been passed by this Tribunal. The only remedy was for challenging that order before a higher Forum and not before the same Forum. This review petition is, therefore, dismissed without any notices to opposite side.

M.A. No. 192/2015

Learned Counsel for the appellant now submits that the appellant is not in a position to comply with the aforesaid direction given today by this Tribunal vide its order dated 29.5.2017. As far as the consequences for non-compliance of the direction of the Tribunal is concerned learned Counsel seeks that we will address this Tribunal on this aspect on the next date.

Counsel for the auction purchaser submits that since huge amount of the auction purchaser is lying with the Bank without any benefit to the auction purchaser inasmuch as sale deed is still to be executed for which necessary stamp papers of the value of around Rs. 7 lacs can be purchased already, the entire matter may be disposed of at the earliest.

List this matter now on 6.7.2017."

Thereafter, the appellant had approached the Hon'ble Delhi High Court by way of a writ petition to challenge this Tribunal's orders dated 29th May, 2017 as also 28th June, 2017 whereby review application was dismissed. On 6.7.2017 when the matter was taken up by this Tribunal the following order was passed:

"At the outset, learned Counsel for the parties informed this Tribunal that the writ petition which the appellant had filed before the Hon'ble Delhi High Court challenging this Tribunal's orders dated 29.5.2017 and 28.6.2017 has been dismissed yesterday by the Hon'ble Delhi High Court.

Today submissions have been advanced from the side of all the parties as to what could be the consequences of non-compliance of the direction of this Tribunal given to the appellant company on 29.5.2017. By that order the appellant company, which is fighting this legal battle to get back its property, which according to its case has been got sold by way of a private treaty though with the permission of the DRT, for a sum of Rs. 1.38 crores paid to the Bank by respondent No. 8 herein, M/s. Welco Distillery Pvt. Ltd. had been directed to deposit with the Tribunal a sum of Rs. 1.38 crores.

Prima facie I am of the view that appellant Company cannot simply get away with non-compliance of the direction given to it. Directions given by Courts as well as Tribunals are meant to be complied with and it is not only the duty of the Tribunal but it is within their powers to ensure that its orders/directions are duly complied with by the litigants to whom the same are given. Thus, I am prima facie of the view that the appellant Company needs to be proceeded against in accordance with law for disobedience of direction of this Tribunal. However, what further orders in this regard need to be passed will be passed after hearing all the Directors of the appellant company because they or some of them at least will have to face the consequences. Therefore, before proceeding further, all the Directors of the appellant company are directed to appear in person on the next date to show cause as to why they be not proceeded against for having disobeyed the direction of this Tribunal.

(Emphasis now supplied)

The aforesaid direction however is not the end of the matter. There are certain observations made by this Tribunal in the order dated 29.5.2017 which also will have to be examined by this Tribunal and those points in my prima facie view cannot be allowed to go unanswered just because appellant has failed to comply with the direction given to it for giving a final verdict in its appeal.

It is also recorded that as far as the Auction Purchaser is concerned its Counsel has today categorically stated that Auction Purchaser will be satisfied in case the money paid by it i.e., Rs. 1.38 crores with interest is refunded to it as it cannot afford to continue to participate in this endless litigation.

Re-notify on 4.8.2017. It is clarified that pendency of the present proceeding will not be a bar for the DRT to proceed with the Bank's pending O.A. in accordance with law."

The appellant Company challenged the order dated 6th July, 2017 also before the Hon'ble High Court but the only relief which it was granted in its writ petition was that instead of all its directors only one could appear before this Tribunal with an authority letter from the others to the effect that they shall be bound by whatsoever stand he will take here will bind them also. Accordingly one director Mr. Arunjeet Banerjee appeared in person at the time of hearing of the matter centring around the consequences which the appellant and its directors can be asked to face for the disobedience of this Tribunal's direction given to the appellant Company on 29.5.2017, as noticed already. Arguments were then advanced by the all the Counsel as to the possible consequences which could flow from the disobedience of the direction/order of this Tribunal by the appellant Company.

Fortunately, none of the Counsel disputed that any direction or order passed by this Tribunal has to be complied with by the litigant to whom the direction is given. However, as to the consequences of disobedience of the direction given the learned Counsel for the appellant Mr. S.P. Mehta had submitted that this Tribunal can go ahead with the disposal of the appeal even without considering the submissions made on behalf of the appellant already meaning thereby the appellant could be denied the right of hearing in its appeal. Indirectly it was also sought to be urged once again that the appellant could not have been called upon to make a deposit to protect its own property and which money in any case the appellant Company does not have and the direction of this Tribunal for making a deposit of huge amount of Rs. 1.38 lacs is impossible to be complied with. Learned Counsel for the other parties also submitted that at the most this appeal could be dismissed without returning any verdict in respect of any of the grievances raised in this appeal by the appellant for setting aside the impugned order of the DRT which would result in paving the way for completing the sale of the property in question in favour of the purchaser for which purpose it has been waiting for years now despite it having paid the sale consideration of Rs. 1.38 crores. In fact, it was submitted by the learned Counsel for the purchaser Company, in which Company also Mr. Nilesh Kumar, who is now managing the borrower Company, is a director, that it was already fed up with this ongoing legal fight and, therefore, it would be content if the purchase money with interest is refunded to it.

'Direction', 'Command' or 'Injunction' are synonyms and all mean the same thing when they are used in the course of judicial proceedings or even quasi-judicial proceedings. The 'Direction', 'Order', 'Command' or 'Injunction', whether mandatory or prohibitory, given in the course of judicial/quasi-judicial proceedings are supposed to be complied with in letter and spirit by the person to whom it is given. When disobedience, which of course has to be willful, takes place by the person to whom any direction or command is given, like in the present case where the appellant was directed by this Tribunal to deposit with this Tribunal a sum of Rs. 1.38 crores, and proceedings are initiated for disobedience those proceedings are in the nature of contempt proceedings.

There is no difference between breach of undertaking given to the Tribunal by a litigant or breach of any direction given by the Tribunal and the consequences of disobedience of the same have also to be same. In the present case the disobedience of the direction given to the appellant Company was willful and that is apparent from the fact that its stand has been before this Tribunal that the direction given to it for depositing Rs. 1.38 crores with this Tribunal was not legal. However, in its attempt to get that direction quashed from the High Court the appellant failed but even thereafter at the stage of hearing on the point of punishment same rigidity was maintained and willingness to comply with the direction of this Tribunal even at that stage was not shown.

When it was put to all the Counsel as to why the direction given to the appellant by this Tribunal could not treated as a kind of mandatory injunction and on the analogy of Order 39 Rule 3A, CPC the violator of the direction should not be punished with the sentence of imprisonment, as is provided under Order 39 Rule 3A, CPC and which provision is akin to 'contempt' action, all the Counsel including of the appellant Company avoided to give any straight answer except to say, and that too not in so may clear words but I could gather that what they wanted to convey was, that direction in question could not be equated with an order of 'injunction' contemplated under Order 39 Rules 1 and 2, CPC and the consequences for violation of injunction provided under Order 39 Rule 2A, CPC also cannot be made applicable to violators of directions of Tribunals. In fact, the impression which I gathered from the submissions made from both the sides was that this Tribunal is virtually a toothless paper tiger.

I will now refer to the judgments I could lay my hands on during on the topic in question. I will start with a Division Bench judgment dated 7th October, 2015 of Andhra Pradesh High Court, which was also arising out of proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. In Writ Petition No. 10352 of 2015, State Bank of India, Hyderabad v. The Debts Recovery Appellate Tribunal. Kolkata, rep, by its Registrar & Ors. The relevant portions of this judgment which give the facts, issues raised and debated and the decision of the High Court are re-produced below:

"4. As respondents 3 to 6 have not complied with the undertaking for depositing Rs. 26 crores as ordered in the order, dated 20.7.2012, passed in M.A. No. 74 of 2012, the petitioner-Bank has filed I.A. No. 935 of 2012 before the 1 st respondent-Appellate Tribunal under Section 19(17) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Act), praying for punishing respondents 3 to6fortheir willful disobedience to the undertaking given.............

The application filed in I.A. No. 935 of 2012 is re-numbered as I.A. No. 311 of 2013 before the 1st respondent-Appellate Tribunal and thereafter, it was disposed of by order, dated 18.2.2015, by recording a finding that respondent No. 4 being the Managing Director of the 3rd respondent-Company, is squarely responsible for the civil contempt and not others and has imposed costs of Rs. 10 lakh in favour of the appellant Bank while posting the matter to 11.3.2015 for compliance.............

In this writ petition, it is the case of the petitioner-Bank that the 1st respondent-Appellate Tribunal, having accepted that there is violation of the undertaking given by respondents 3 to 6 by not depositing the balance amount of Rs. 20 crores, has erroneously passed orders against respondent No. 4 only to pay an amount of Rs. 10 lakh as penalty. It is their case that respondents 3 to 6 have not even disputed the undertaking, as such, the Appellate Tribunal has also committed error by confining the responsibility only to respondent No. 4. It is their case that there is no order passed by the Appellate Tribunal to close the breach by ordering for deposit of Rs. 20 crores as per their undertaking given, and as respondents 3 to 6 have willfully and deliberately disobeyed the undertaking, they are liable for detention as contemplated under Section 19(17) of the Act. It is also their case that respondents 3 to 6, by taking advantage of the orders of 1st respondent-Appellate Tribunal by furnishing undertaking, have grossly abused the process of law by not depositing Rs. 20 crores as per their undertaking, and hence, the order passed by the 1st respondent-Appellate Tribunal and the consequential order accepting the memo filed by the respondents, is fit to be set aside by ordering detention of respondents 3 to 6.

Heard Mr. M. Narender Reddy, learned Senior Counsel appearing for petitioner-Bank, Mr. Vedula Venkat Ramana, learned Senior Counsel appearing for respondents 3 and 4 and Mr. Koka Raghava Rao, learned Senior Counsel appearing for respondents 5 and 6.

...........It is further contended that once breach is found by the Appellate Tribunal, it is not open to accept the mere penalty. It is contended that in view of the provision under Section 19(17) of the Act, the only option left to the Appellate Tribunal is to order for attachment of the properties of the person guilty and also order such person to be detained in civil prison for a term not exceeding 3 months, unless in the meantime, the Tribunal directs his release. It is submitted that having found that the 3rd respondent-Company and its Directors have breached the undertaking, the Tribunal ought not to have passed the order by merely imposing Rs. 10 lakh as against the undertaking to deposit an amount of Rs. 26 crores. It is contended that such order is not in conformity with the provision under Section 19(17) of the Act. In support of his contentions, the learned Counsel has placed reliance on the judgments of Hon'ble Supreme Court in the case of Mohammad Idris & Another v. Rustam Jehangir Bapuji & Others and in the case of Balram Singh v. Bhikam Chand Jain & Ors.

13.........It is not in dispute that respondents 4 to 6 being Directors of the 3rd respondent-Company, have not disputed filing of such undertaking. It is fairly well settled that when an undertaking is given and orders are passed by taking the same on record, if there is violation of such undertaking, it is always open for the aggrieved party to file appropriate application complaining disobedience. As per Section 19(17) of the Act, if there is disobedience to an order passed by the Tribunal under Sub-sections (12), (13) and (18) or breach of any of the terms on which the order was made, the Tribunal may order the properties of the person guilty of such disobedience or broach to be attached and may also order such person to be detained in civil prison for a term not exceeding three months unless in the meanwhile the Tribunal directs his release. The contention of learned Senior Counsel Mr. Vedula Venkat Ramana appearing for respondents 3 and 4 that the provision under Section 19(17) of the Act cannot be applied to the orders passed by the Appellate Tribunal, cannot be accepted. Admittedly, the matter which is carried in appeal before the Debts Recovery Appellate Tribunal is against the order passed in interlocutory application, within the meaning of Section 19(18)(e) of the Act. It is fairly well settled that the appeal is in continuation of the original petitions, as such, the contention of learned Counsel that the provision under Section 19(17) of the Act will be applicable to only primary Tribunal and not Appellate Tribunal, cannot be acceded to. If matters are carried by way of appeals against the orders passed within the scope of Section 19(12), (13) and (18) of the Act, any orders passed by the Appellate Tribunal, would be in continuation to the orders passed by the primary Tribunal under such provisions. In the absence of any restriction under Section 19(17) of the Act to the primary Tribunal and as it is not in dispute that the order appointing Advocate-Commissioner for preparation of inventory is traceable to power under Section 19(18)(e) of the Act, the contention of learned Counsel that the scope of provision under Section 19(17) of the Act is confined to the orders passed by the primary Tribunal, cannot be accepted.......Coming to the other submission made by the learned Senior Counsel Mr. Vedula Venkat Ramana that the order dated 20.7.2012, is merged with the order dated 11.2.2013, as such, there is no cause of action for filing the petition in I.A. No. 935 of 2012 (old) and 311 of 2013 (new number after the matter is transferred to the Appellate Tribunal at Kolkata), we have perused the common order dated 20.7.2012, passed by the Debts Recovery Appellate Tribunal, Chennai, in I.A. Nos. 935 of 2012, 919 of 2012 and 737 of 2012. After filing the petition in I.A. No. 935 of 2012 before the DRAT, Chennai, complaining violation of the undertaking given by respondents 3 to 6, I.A. No. 919 of 2012 is filed to reopen MA. No. 74 of 2012 and both the petitions are disposed of by a common order. In I.A. No. 935 of 2012, in view of the further submission made on behalf of respondents 3 to 6 to deposit Rs. 20 crores in four instalments of Rs. 5 crores each, matter was posted to 15.3.2015 to verify the payments. At the same time, by allowing I.A. No. 919 of 2012, which is filed for reopening M.A. No. 74 of 2012, further orders are passed directing the primary Tribunal to dispose of the matter within a time frame. In view of such order passed on 11.2.2013, it cannot be said that the order, dated 20.7.2012, is merged with the final order dated 11.2.2013. From the common order itself, it is clear that I.A. No. 935 of 2012 was ordered to be listed on 15.3.2013 for verification of payment, in view of the submission made to pay the balance amount of Rs. 20 crores in four instalments. Even then also, they have not paid such amount. As such, the contention advanced by the learned Senior Counsel appearing for respondents 3 and 4 that the effect of earlier order is merged with the subsequent order, dated 11.2.2013, as such, no petition can be filed for disobedience, cannot be accepted. Coming to the judgment relied on by the learned Counsel in Sunil Bharti Mittals case (supra), in the said judgment, the Hon'ble Supreme Court has held that if the Company is accused, its Directors can be roped in only if there is sufficient incriminating evidence against them coupled with the criminal intent. In the very same judgment, the Hon'ble Supreme Court has held that an individual, who has perpetrated the commission of offence on behalf of a Company, can be made an accused along with the Company, Having regard to the fact that the undertaking is given by respondents 4 to 6 on behalf of the 3rd respondent-Company, it cannot be said that they are unnecessarily roped-in on behalf of the Company. Only pursuant to the resolution passed by the Board of Directors of the 3rd respondent-Company, undertaking affidavit is filed on 20.7.2012, on behalf of respondent No. 3, before the Appellate Tribunal at Chennai, undertaking to pay an amount of Rs. 26 crores in two spells, as such, it is not open for them to plead that they are not liable, but the 3rd respondent-Company alone is liable. In spite of the fact that the primary Tribunal has passed orders appointing Advocate-Commissioner to take inventory of the gold articles in the business premises of the 3rd respondent-Company, same was not allowed in view of the interim orders obtained by respondents 3 and 4 before the Appellate Tribunal, solely based on the undertaking affidavits filed before it. Having got set aside the orders passed by the primary Tribunal, which were passed to ensure their claim in the event of their success, it is not open for respondents 4 to 6 being the Directors of 3rd respondent-Company, to wriggle out of the claim by disobeying the undertaking given before the Appellate Tribunal. Such conduct on the part of respondents 4 to 6 is totally deplorable and they have resorted to gross abuse of the process. Having obtained huge loan facility from the petitioner-Bank, they went to the extent of accusing the said Bank that it has played fraud on them by alluring with the Metal Gold Scheme.

14.........Further, in the judgment relied on by the learned Senior Counsel for petitioner-Bank in Balram Singhs case (supra), which arose under the Contempt of Courts Act, the Hon'ble Supreme Court has held that when there is gross contempt of Court, adequate sentence is necessary. In the other judgment relied on by the learned Counsel for petitioner-Bank in Mohammad Idris case (supra), the Hon'ble Supreme Court has confirmed the orders passed by the High Court directing closure of breach of undertaking given by a party by giving appropriate directions in addition to punishing the party for contempt of Court. Both these judgments, though under Contempt of Courts Act, would support the case of petitioner in the present case, in view of the language under Section 19(17) of the Act.

The Appellate Tribunal, in the order dated 18.2.2015, though has recorded a finding that respondent No. 4 being the Managing Director of the 3rd respondent-Company, is wholly responsible for civil contempt and not others, curiously, it has disposed of the petition by merely ordering to pay a sum of Rs. 10 lakh in favour of the petitioner-Bank. From a perusal of the provision under Section 19(17) of the Act, it is clear that there is no such power conferred on the Tribunal to close the breach by imposing such penalty only. In the event of any finding by the Primary or the Appellate Tribunal that there is violation of the orders passed under Section 19(12), (13) or (18) of the Act, or breach of any of the terms of the order passed by the Tribunal, the only option left to such Tribunal is either to order for attachment of the properties of the person guilty of such disobedience or breach and to order such person to be detained in civil prison for a term not exceeding three months. While exercising statutory power under Section 19(17) of the Act, it is not open for the Tribunals to pass any other order by traversing beyond the scope of the provision itself. In that view of the matter, the order of the Appellate Tribunal, dated 18.2.2015, to the extent of closing the breach by imposing penalty of Rs. 10 lakh, is liable to be set aside. Consequently, the recording of memo is also fit to be set aside. As the amount of Rs. 10 lakh deposited by the respondents pursuant to the order, dated 18.2.2015, is received by the petitioner-Bank without prejudice to their rights, it cannot be said that merely because they have accepted such amount, they cannot pursue the matter further. As we are of the considered view that the 3rd respondent-Company and its Directors i.e. respondents 4 to 6 have grossly abused the process of law and deliberately and intentionally violated the undertaking furnished before the Appellate Tribunal on 20.07.2012, they are liable to be punished under Section 19(17) of the Act. Thus, we find that the impugned orders passed by the Appellate Tribunal are not inconformity with law as contemplated under Section 19(17) of the Act...

Jammu & Kashmir High Court in Mst. Haira v. Abdul Majeed Matoo & Ors., AIR 1986 J & K 84 had observed that:

"9. When a decree for mandatory injunction is passed, it cannot be held to be unexecutable and the decree holder cannot be forced to fresh litigation after having fought litigation once for quite a number of years. Law does not countenance this. Nor had the Legislature intended to defeat the decree of mandatory injunction simply because the judgment debtor has refused to vacate the premises which under the decree he had to vacate.....

Decree for injunction is a command issued by the Court to do a thing or to forbear from doing a thing. The command once given, which has assumed finality, can be enforced by the Court which gave the same.........."

A similar question regarding the powers of State Commission constituted under the Consumer Protection Act, as to how Consumer Forums could implement their orders, arose for consideration before a three-Member Bench, headed by a former High Court Judge, of the State Consumer Disputes Redressal Commission, West Bengal, in the case of The New India Assurance Co. Ltd. v. Sunil Kr. Neogi, decided on 30 September, 2008 and this is how this question was dealt with and answered:

"This Revisional Application was filed by New India Assurance Company Ltd. challenging the order dated 27.5.2008 whereby the Judgment Debtor/Petitioner was directed to satisfy the decree on or before 27.6.2008 in default steps would be taken as per provisions of law.

Mr. N.R. Mukherjee, the learned Advocate for the Judgment Debtor/Petitioner contended that the Consumer Protection Act as its stands today, does not permit execution of the decree by the Forum as order of the Forum does not enjoy the status of decree of a Civil Court after amendment of the Act in the year 2002.

It is contended that as the order sought to be implemented was for payment of money the only course open for its implementation is under Section 25(3) of the Act. The Forum cannot avail of any other course for execution of its order granting relief of payment of money. The Section 27 of the Act does not empower the Forum to issue warrant of arrest for non-compliance of the final order passed by a Forum and powers under Section 13(4) of C.P. Act, were referred to. Only in case the attendance in Court is directed and still not complied by the Judgment Debtor, Section 27 can be availed of. It is argued that the said Section 27 is for imposition of penalty for non-compliance of an order by which Forum gives certain specific directions in course of the proceeding before it and not for execution of its final order granting monetary relief for which Section 25(3) has been specifically provided.

On behalf of the Decree Holder it is contended by Mr. Uday Chandra Jha learned Advocate that the Consumer Protection Act, 1986 was amended by Consumer Protection (Amendment) Act, 2002 amending various Sections out of which Sections 25 and 27 are under consideration presently.

So far as the contention of the Judgment Debtor is concerned that Section 27 only deals with reliefs of any nature except monetary relief as in respect of monetary relief Section 25(3) was provided, does not appear to be acceptable. The reason for such conclusion is that Section 27 mentions any order and there is no guideline in Section 27 which makes us to read such an expression any order with a restrictive meaning..........Section 27 provides an additional avenue in respect of any order whatsoever and the section itself does not indicate any restrictive application.

With regard to the contention that when an order has been passed against a company, a junior officer of the company cannot be arrested as he does not represent the company, it appears that it is true that in such a case a company is the Judgment Debtor. But when a company violates any order which results in arrest of the violator, Principal Officers of the company are to be held responsible. While finding as who is to be dealt with when a company has committed an offence our Apex Court has followed the classic statement of Viscount Haldane, Lord Chancellor in Lennards Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd., (1915 AC 705) which is as follows:

A corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. That person may be under the direction of the shareholders in general meeting; that person may be the board of directors itself, or it may be, and in some companies it is so, that person has an authority coordinate with the board of directors given to him under the articles of association.

Following the said principle the Apex Court in the case of J.K. Industries v. Chief Inspector of Factories & Boilers, 1996(6) SCC 665 held as follows:

"Where the company owns a factory it is the company which is the occupier, but since company is a legal abstraction without a real mind of its own, it is those who in fact control and determine the management of the company, who are held vicariously liable for Commission of Statutory Offences. The directors of the company are, therefore, rightly called upon to answer the charge, being the directing mind of the company.

Therefore in respect of a company judgment debtor, such persons are to be dealt with for the offence of non-compliance of the order of the Forum/Commission.

With regard to definition of person we have considered the provisions of law and particularly Section 2(m) of C.P. Act.

But in view of Sub-clause (iv) of Section 2(m) of the C.P. Act and Section 3(42) of General Clauses Act, the position is clear that a person includes a company.

The scope and meaning of these two Sections 25 and 27 (prior to amendment in Sections 25 and 27 were considered by the Apex Court in the case of State of Karnataka v. Vishwabarathi House Building Co-op. Society, I (2003) SLT 435 : 2003 (3) SCC 412 and the relevant findings areas follows:

"Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure.........

A Parliamentary statute indisputably can create a Tribunal and might say that non-compliance of its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery.

It is well settled that the cardinal principle of interpretation of statute is that Courts or Tribunals must be held to possess power to execute their own order.

It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which his a self-contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the Tribunal all powers in order to make its order effective".

(Emphasis supplied)

In above view of the findings we hold that an order of a Forum/Commission can be implemented under Section 27 of the C.P. Act and the Forum/Commission is entitled to issue warrant of arrest to the Decree Holders not complying with the final order of a Forum/Commission...........In respect of interpretation of these provisions such meaning of the relevant procedural law is acceptable which makes the C.P. Act more effective and beneficial to the consumers so that scheme of the Act benefits. Law in this regard has been decided by the Apex Court in the case of Owners and Parties interested in M.V. Vali Pero v. Fernandeo Lopez, AIR 1989 SC 2206 and the relevant finding therein is as follows :

"Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the Court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to subserve and not rule the cause of Justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the hand maid of justice, contrary to the role attributed to it in our legal system.

Insofar as the present facts are concerned it appears that application was made by the Decree Holder for compliance of the order by the Judgment Debtor and specific direction was given by the Executing Forum and only on non-compliance thereof, impugned order was passed. As regards the officer who is to represent the company, in case a company is found to have committed an offence, its Principal Officers and/or the person carrying on its function are liable as held hereinabove...."

In K.G. Derasari &Anr. v. Union of India &Ors., V. (2004) SLT 800 : (2001) 10 SCC 496, it was observed by the Hon'ble Supreme Court while dealing with the aspect of violation of Court orders as under:

"2. The short question that arises for consideration in this appeal is whether the Tribunal was justified in an application for contempt by issuing direction which tantamounts to the review of its earlier decision?

The dispute relates to the principles to be followed for determination of seniority on being promoted to the post of U.D.C. from that of L.D.C.

On an application being filed before the Central Administrative Tribunal (for short "the Tribunal") which was registered as O.A. No. 392/93, the Tribunal disposed of the matter by its order dated 17.1.1995 following the decision in the case of Mohinder Kumar and Ashok Mehta, T.A. No. 556/1986 and O.A. 147/88. That decision of the Tribunal was made on 17.1.1995 and it transpires that there was an earlier decision in the case of N. Ravindran which arose out of a judgment of Central Administrative Tribunal, Ernakulam Bench and which had not been placed before the Tribunal. On a contempt application being filed before the Tribunal alleging that the decision dated 17.1.1995 has not been followed, the Tribunal examines the decision in Ravindran's case, reviews its earlier order and holds that there is no contempt. It is this order which is being assailed in this appeal.

Having considered the rival submissions at the bar, we have no hesitation to come to the conclusion that the Tribunal was not entitled to in a contempt proceeding, to consider the legality of its earlier order which has reached finality not being assailed or annulled by a competent Forum......In an application for contempt, the Tribunal was only concerned with the question whether the earlier decision has reached its finality and whether the same has been complied with or not. It would not be permissible for a Tribunal or Court to examine the correctness of the earlier decision which has not been assailed, and reverse its earlier decision."

9......So far as the alleged contemnor No. 1 is concerned, we are of the opinion that he being the Managing Director of the Company, is liable to be punished. He is sentenced to undergo six months imprisonment. The alleged contemnor No. 2 is also held guilty but as he was not the Managing Director, we are of the view that sentencing him three months imprisonment shall meet the ends of justice."

Similarly the Hon'ble Supreme Court in State of Bihar and Ors. v. Rajendra Singh & Anr., V. (2004) SLT 284 : III (2004) CLT 295 (SC), Appeal (Civil) 6356 of 2000, decided on 24th August, 2004 dealt with similar question as under:

"The State of Bihar is in appeal against the order of the learned Single Judge who by the same held that there was violation of the Court's order. Without indicating as to what was the consequence of such violation, it directed reconsideration of the order purported to have been passed in compliance with the direction of the High Court. According to the learned Counsel for the appellant-State there was no violation of the High Court's order and as such the finding recorded and the direction for re-consideration are not sustainable in law.

Per contra, learned Counsel for the respondent, who was the applicant before the High Court, for initiation of contempt proceedings submitted that learned Single Judge was justified in holding that there was violation of the Court's order but having said so, should not have directed for re-consideration and on the other hand should have punished the contemnor.

While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision, which has received its finality, had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to take the view different than what was taken in the earlier decision. A similar view was taken in K.G. Derasari & Anr. v. Union of India and Ors., 2001 (10) SCC 496. The Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the concerned party to approach the higher Court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher Court. The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Though strong reliance was placed by learned Counsel for the State of Bihar on a three-Judge Bench decision in Niaz Mohammad & Ors. v. State of Haryana & Ors., 1994 (6) SCC 352, we find that the same has no application to the facts of the present case. In that case the question arose about the impossibility to obey the order. If that was the stand of the State, the least it could have done was to assail correctness of the judgment before the higher Court. State took diametrically opposite stands before this Court. One was that there was no specific direction to do anything in particular and, second was what was required to be done has been done. If what was to be done has been done, it cannot certainly be said that there was impossibility to carry out the orders. In any event, the High Court has not recorded a finding that the direction given earlier was impossible to be carried out or that the direction given has been complied with.

On the question of impossibility to carry out the direction, the views expressed in T.R. Dhananjaya v. J. Vasudevan, 1995 (5) SCC 619, need to be noted. It was held that when the claim inter se had been adjudicated and had attained finality, it is not open to the respondent to go behind the orders and truncate the effect thereof by hovering over the rules to get round the result, to legitimize legal alibi to circumvent the order passed by a Court.

In Mohd. Iqbal Khanday v. Abdul Majid Rather, AIR 1994 SC 2252, it was held that if a party is aggrieved by the order, he should take prompt steps to invoke appellate proceedings and cannot ignore the order and plead about the difficulties of implementation at the time contempt proceedings are initiated.

If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible.

After having arrived at a conclusion that there was violation of the Court's order, the Court should have focused its attention to the issue as to what further was done consequentially. Instead it went on to give further directions for reconsideration in the line of views expressed by it. That is clearly impermissible. In some cases Court may grant opportunity to the contemnors to purge the contempt. This is not a case of that nature. In fact learned Single Judge has held on merits that the decision of the D.G. Board was not proper and therefore remitted the matter for reconsideration."

In one contempt matter Maruti Udyog Limited v. Mahinder C. Mehta & Ors., I (2008) BC 151 (SC) : IX (2007) SLT 84, Contempt Petition (Civil) 289 of 2003, decided on 10th October, 2007 Hon'ble Supreme Court had observed as under:

"9........So far as, the alleged contemnor No. 1 is concerned, we are of the opinion that he being the Managing Director of the Company, is liable to be punished. He is sentenced to undergo six months imprisonment. The alleged contemnor No. 2 is also held guilty but as he was not the Managing Director, we are of the view that sentencing him three months imprisonment shall meet the ends of justice."

Punjab and Haryana High Court in UCO Bank v. D.R.A.T. etc., C.W.P. No. 18298 of 2008, decided on 24th October, 2008 also examined relevant provisions of the RDDBFI Act, 1993 regarding non-compliance of orders of DRT and observed as under:

"2. The petitioner-Bank had advanced a loan to respondent-Company against mortgage of property. In addition, respondents No. 1 C.W.P. No. 18298 of 2008, and 2, who are said to be nephews of one of the Directors of the Company, also stood guarantors for repayment of the loan and mortgaged their property. The Bank gave notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, to which objections were filed by the borrower, but rejecting the said objections, the Bank took over the symbolic possession of the properties not only of the borrower but also of the guarantors. The guarantors filed an appeal under Section 17(1) of the SARFAESI Act. The Tribunal declined the stay, against which C.W.P. No. 5356 of 2007 was filed in this Court wherein status quo was ordered vide order dated 5.4.2007. Stay was also sought by the Company and its Directors which was declined, against which C.W.P. No. 7618 of 2007 was dismissed by this Court and property of the Company was sold. The entire outstanding amount of the Bank was recovered, leaving some amount surplus. Writ petition filed by the guarantors i.e. C.W.P. No. 5356 of 2007 was dismissed as infructuous. The guarantors filed an application before the Tribunal for quashing the action of the Bank under the SARFAEST Act and vide order dated 7.11.2007, the said application was accepted.

In Paras 5 to 7 of the order of Debts Recovery Tribunal-1, Chandigarh dated 7.11.2007, it was observed:

"5. It is not disputed that secured assets in respect of principle borrower, were put to auction and respondent No. 1 has already recovered its entire amount along with some surplus amount. It is also not disputed that sale has been confirmed, sale certificate has been issued in favour of auction purchaser and possession has been delivered to the auction purchaser. It is also admitted fact that amount deposited by the auction purchaser, has been appropriated towards its dues by the Bank and now no amount is due and recoverable by it.

In view of the above, the prayer of the applicants/appellants to dispose of the S.A. quashing the action of the respondent Bank, deserves to be allowed with costs and direction that applicants/appellants shall be entitled to Counsel fee as per Advocates Act or Fee Certificate filed by the Advocate, whichever is less. Respondent No. 1 is also directed to return the original title deeds of the applicants/appellants herein, within a month, from the date of pronouncement of this order.

Insofar as the award of compensation is concerned, after examination of record, in my opinion, no case for compensation is made out. Moreover there is nothing on record to quantify the amount of compensation. Hence, the prayer of compensation is declined accordingly. IA No. 325/07 stands disposed of accordingly."

Thereafter, on 3.12.2007, the Tribunal took up the application filed by the guarantors under Section 17(7) of the SARFAESI Act read with Sections 19(20) and 19(22) of the Recovery of C.W.P. No. 18298 of 2008 4 Debts Due to the Banks and Financial Institutions Act, 1993 (for short, "the RDDB Act") for issuance recovery certificate.

The Tribunal directed that direction to pay costs be complied with by 7.12.2007 and titled deeds be returned, failing which the General Manager of the Bank should appear in person to show cause why action for disobedience of the Court's order be not initiated. The Bank preferred an appeal to the Appellate Tribunal which was disposed of vide order dated 1.10.2008. The Appellate Tribunal observed:

"24. On cumulative consideration of the concomitant facts and circumstances, I endorse the view of the Tribunal below whereby the S.A. No. 3/2007 filed by respondents 1 and 2 was disposed of with costs and the Advocate's fee. The respondents 1 and 2 herein paid a Court fee of Rs. 1,50,000/- on S.A. 3/2007 before the Tribunal below.

However, Counsel fee of Rs. 1,52,500/- and costs of miscellaneous application amounting to Rs. 2,500/- were also claimed. In my opinion, the Counsel fee should be quantified at Rs. 30,000/- only because the matter came to an end half-way without full-fledge trial. There are no details to justify the claim of Rs. 2,500/- on account of miscellaneous applications. It would just, fair and reasonable to allow total costs of Rs. 1,80,000/- (Rs. 1,50,000 paid towards Court fee on S.A. + Rs. 30,000/- towards Counsel fee) only. The appellant Bank should pay this amount of Rs. 1,80,000/- to respondents 1 and 2 within three weeks from the date of this order. Failing that, at the motion of respondents 1 and 2 herein, the DRT shall summon the General Manager of the Bank to proceed ahead for disobedience of the Court's order and for suffering punishment, besides realizing the amount in question."

We have heard learned Counsel for the Bank as well as Counsel for the guarantors/caveators.

As regards the contention that the Tribunal was not a Court of record and could not exercise power of requiring the General Manager to appear if the order was not carried out, we are of the view that the statutory Tribunal which has to adjudicate upon the dispute has also power to implement its order. We may refer to observations of the Hon'ble Supreme Court in State of Karnataka v. Vishwabarathi House Building Co-op. Society, AIR 2003 SC 1043:

It is well-settled that the cardinal principle of interpretation of statute is that Courts or Tribunals must be held to possess power to execute their own order.

It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the Tribunal all powers in order to make its order effective."

The above observations fully apply to the present situation.

Apart from express power to impose costs under Section 19 of the SARFAESI Act, there is statutory power under Section 19(25) of the RDDBFI Act which has been made applicable by virtue of Section 17(7) of the SARFAESI Act to pass such orders as may be expedient to give effect to the orders of the Tribunal."

In State of Karnataka v. Viskwabarathi House Building Co-op. Society, I (2003) SLT 435 : AIR 2003 SC 1043, which had been relied upon by the Punjab and Haryana High Court in the above referred judgment it was further held as under:

"A bare perusal of the Section 25 of the Act clearly shows that thereby a legal fiction has been created to the effect that an order made by District Forum/State Commission or National Commission will be deemed to be a decree or order made by a Civil Court in a suit. Legal fiction so created has a specific purpose, i.e., for the purpose of execution of the order passed by the Forum or Commission. Only in the event the Forum/State Commission or the National Commission is unable to execute its order, the same may be sent to the Civil Court for its execution. The High Court, therefore was not correct to hold that in each and every case the order passed by the Districts Forum/State Commission, National Commission are required to be sent to the Civil Courts for execution thereof.

Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts, Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. A Parliamentary statute indisputably can create a Tribunal and might say that non-compliance of its order would be punishable by way of imprisonment of fine, which can be in addition to any other mode or recovery.

It is well-settled that the cardinal principle of interpretation of statute is that Courts or Tribunals must be held to posses power to execute their own order.

It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self-contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the Tribunal all powers in order to make its order effective.

In Savitri v. Gobind Singh Rawal, AIR 1986 SC 984, has been held as follows:

"Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its order effective. This principle is embodied in the maxim 'ubi aliquid conceditured in since quo res ipsa esse non potest' (where anything is conceded, there is conceded also anything without which the thing itself cannot exist) (Vide Earl Jowitt's Dictionary of English Law, 1959 Edn., P. 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties......."

In Arabind Das v. State of Assam & Ors., AIR 1981 Gauhati 18 (F.B.), it has been held as follows:

"We are of firm opinion that where a statute gives a power, such power implies that all legitimate steps may be taken to exercise that power even though these steps may not be clearly spelt in the statute. Where the rule making authority gives power to certain authority to do anything of public character, such authority should get the power to take intermediate steps in order to give effect to the exercise of the power in its final step, otherwise the ultimate power would become illusory, ridiculous and inoperative which could not be the intention of the rule making authority.

In determining whether a power claimed by the statutory authority can be held to be incidental or ancillary to the powers expressly conferred by the statute, the Court must not only see whether the power may be derived by reasonable implication from the provisions of the statute, but also whether such powers are necessary for carrying out the purpose of the provisions of the statute which confers power on the authority in its exercise of such power."

The terminology used in Section 25 of the Act to the effect "in the event of its inability to execute it" is of great significance. Section 25, on a plain reading, goes to show that the provision contained therein presuppose that the Forum or the Commission would be entitled to execute its order. It however, may send the matter for its execution to a Court only in the event it is unable to do so. Such a contingency may arise only in a given situation but in our considered opinion the same does not lead to the conclusion that the Consumer Courts cannot execute its own order and by compulsion it has to send all its orders for execution to the Civil Courts. Such construction of Section 25 in our opinion would violate the plain language used therein and, thus, must be held to be untenable."

Madras High Court in B. Poornima v. State Bank of Travancore, III (2009) BC 616 (DB), C.R.P. Nos. 3725 & 3726 of 2008, decided on 27.1.2009 had observed that:

"5. The Debts Recovery Tribunal has been established under Section 3 of the DRT Act, 1993, to exercise jurisdiction, powers and authority conferred on such Tribunal by or under the said Act. The Debts Recovery Appellate Tribunal has been so established under Section 8 of the DRT Act, 1993 to exercise jurisdiction, powers and authority conferred on such Appellate Tribunal by or under the said Act. The Bank or a financial institution, for recovery of debt from any person, can make an application before the Tribunal under Section 19. Section 19(13-A) empowers the Tribunal, if satisfied, to pass certain order, including interim order, in case the defendant of the said case obstructs or delays or frustrates the execution of any order for recovery of debt passed by the Tribunal against him. Under Section 19(18), the Tribunal, where it appears just and convenient, may appoint a Receiver of any property, even before grant of certificate for recovery; remove any person from possession or custody of the property; commit the same to the possession, custody or management of the Receiver and confer upon the receiver all such powers as mentioned under Clause (d) of Section 19(18) and may appoint a Commissioner for preparation of inventory of any properties of the defendant or for sale thereof, etc. Under Section 19(2), the Tribunal, after giving the applicant and defendant an opportunity of being heard, is, empowered to pass interim order or final order, including the order of payment of interest to meet the ends of justice as quoted as hereunder:

The Tribunal may, after giving the applicant and the defendant an opportunity of being heard, pass such interim or final order, including the order of payment of interest from the date on or before which payment of the amount is found due upto the date of realisation or actual payment, on the application as it thinks fit to meet the ends of justice. Therefore, it will be evident from Section 19(20) that the Tribunal can pass interim order to meet the ends of justice.

So far as the Appellate Tribunal is concerned, it has also power under Rule 22 of the Debts Recovery Appellate Tribunal (Procedure) Rules, 1994, to pass interim orders to prevent abuse of its process or to secure ends of justice, as quoted hereunder:

Orders and directions in certain cases--The Appellate Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice. If all the aforesaid provisions are read harmoniously, it will be evident that not only the Tribunal is empowered to pass interim order of such nature or give such directions as may be necessary or expedient to prevent abuse of its process or to secure the ends of justice, which power is also vested with the Appellate Tribunal.

Before the Tribunal or the Appellate Tribunal, the question of grant of interim order is generally taken up during the pendency of the proceeding. If one or other interim order is passed, it not only delays the proceeding, including the proceeding before the Tribunal and, consequently, delay the recovery of debts due to Banks and financial institutions, though Tribunals have been established under the DRT Act, 1993, for expeditious adjudication and recovery of debts due to Banks and financial institutions and for matters connected therewith or incidental thereto. Merely by taking advantage of interim order one or other party, in one or other case, may delay such recovery by abusing the process of law. It is in such case, taking into consideration the nature of the prayer, it is open to the Tribunal or the Appellate Tribunal to make such orders or give such directions as may be necessary or expedient to prevent abuse of its process or to secure the ends of justice. In such case, if a conditional interim order is passed by Tribunal or Appellate Tribunal, it is well within their jurisdiction, having vested with such power under the DRT Act and the rules framed thereunder.

In Allahabad Bank, Valvutta v. Radha Krishna Matty & Ors., VII (1999) SLT 366 : 1999 (6) SCC 755, while the Supreme Court expressed similar view, observed as follows:

It will be noticed that Section 22(1) deals with the powers of the Tribunal and Section 22(2) deals with certain specified powers. Rule 18 also deals with the powers of the Tribunal to pass orders. It further held as follows:

In addition Rule 18 enables the Tribunal to pass orders to secure ends of justice. In Mardia Chemicals v. Union of India, 2004 (4) SCC 311 : AIR 2004 SC 2371, the Supreme Court held as follows:

The Bombay High Court in Narayan Avachitrao Deshmukh v. State Bank of India &Anr., 2004 (2) Bankmann 54, while dealing with Section 19 (25) of the DRT Act, 1993, held as follows:

6..........The provision laid down under Section 19 (25) of the Amendment Act No. 1 of 2000 seems to be there in Rule 18 of the Debt Recovery Tribunal (Procedure) Rules, 1993. This Sub-section (25) of Section 19 of the Act confers inherent powers on the Tribunal and wide powers for proper administration of justice. It gives authority to the Tribunal to exercise inherent powers for administering justice. Where there is no express provision in the Act for a remedy, the Tribunal can invoke at any stage of the proceedings this power to meet the ends of justice and to prevent abuse of process of law. But where there is a specific provision in the Act to meet a particular situation, this provision is complementary to the other powers mentioned in the other provisions of the Act. The main aim of this provision is that omission of any provision in the Act should not make the Tribunal powerless..........."

Bombay High Court in Narayan Avachitrao Deshmukh v. State Bank of India And Anr., II (2004) BC 525, held as under:

"5. The learned Counsel for respondent No. 1 Bank resorted to the provisions contained under Section 19(25) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, the "Act") which read as under:

"(25). The Tribunal may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice."

I have read the entire Section 19 of the Act The Debt Recovery Tribunal under the Act is fully empowered to make appropriate interim orders including all such direction and orders as may be passed under Section 19(6) of the Act. Section 19(6). is not exhaustive in its nature. In fact, from the history of legislation in this behalf, it is clear that the Parliament has constituted a separate Tribunal by providing necessary powers and teeth under Sections 17, 18 and 19 to pass and get their orders implemented, whether final orders or interim orders, by ousting jurisdiction of all the Courts under Section 18. In other words, the Tribunal is constituted under this Act, in substitution of the Civil Court, but without the trappings of the Civil Court. Hence, it can pass any kind of order, final or interim order to fulfill the object of the Act without any procedural ramifications, but at the same time, being guided by the principles of natural justice.

The provision laid down under Section 19(25) of the Amendment Act No. 1 of 2000 seems to be there in Rule 18 of the Debt Recovery Tribunal (Procedure) Rules, 1993. This Sub-section (25) of Section 19 of the Act confers inherent powers on the Tribunal and wide powers for proper administration of justice. It gives authority to the Tribunal to exercise inherent powers for administering justice. Where there is no express provision in the Act for a remedy, the Tribunal can invoke at any stage of the proceedings this power to meet the ends of justice and to prevent abuse of process of law. But where there is a specific provision in the Act to meet a particular situation, this provision is complementary to the other powers mentioned in the other provisions of the Act. The main aim of this provision is that omission of any provision in the Act should not make the Tribunal powerless."

From the aforesaid judgments of the Hon'ble Supreme Court, High Courts, the legal position which emerges is that:

(i) Quasi-judicial Tribunals, like the Debt Recovery Tribunals/Debts Recovery Appellate Tribunals (DRATs) are not powerless and toothless paper tigers;

(ii) In the course of judicial proceedings the DRTs/DRATs can pass directions/orders to be complied with by any party in the matters before them, like this Tribunal had directed the appellant Company to deposit with this Tribunal Rs. 1.38 crores vide order which has already been re-produced;

(iii) The Tribunals (DRTs/DRATs) have all the powers to give effect to their orders and ensure their strict compliance if it is found that non-compliance was willful and intentional, which I have already held in the present case that non-compliance of the direction of this Tribunal was willful and intentional. To give effect to the direction given DRTs/DRATS can pass any orders including attachment of properties of violators of the directions and sending them to jail;

(iv) Proceedings to ensure compliance of the directions given by DRTs/DRATs are in the nature of contempt proceedings and akin to Order 39 Rule 2A of the Code of Civil Procedure and when the stage has reached for ensuring compliance of the given directions by the party who has disobeyed the directions the Tribunals cannot at that stage be asked to reconsider the correctness or legality or justification for the impugned direction. The appellant and its Directors had attempted to persuade this Tribunal, even after having lost in their challenge to the impugned direction before the High Court to revisit the impugned direction and recall it. The appellant must have gone to High Court realising that the impugned direction, if not complied with, will entail some consequences which could even be 'penal' in nature also;

(v) When non-compliance of any direction given is by a Company, like the appellant Company herein, its directors can be punished and particularly its Managing Directors. Ordinary Directors can claim that they are not liable for the act of their Company as they were not managing the affairs of the Company. Here, the appellant Company and all its Directors were required to show cause as to why they be not proceeded against for noncompliance of the direction given to them and in fact all the Directors were required to appear in person also before this Tribunal. Hon'ble High Court, however, had on being approached by them by way of a writ petition permitted all the Directors to be represented by only one Director with an authority letter from others to represent them also. Accordingly one Director appeared but he did not claim that he as well as the other director were not liable to be punished for the non-compliance of the direction of this Tribunal by their Company. The third pone being the Managing Director is in any case liable by virtue of his being the Managing Director.

Considering all the facts and circumstances, I have come to the conclusion that this is a fit case where the appellant Company as well as its Director Mr. Arunjeet Banerjee, Chairman-cum-Managing Director Mr. Alok Banerjee and the other Director Mr. Subir Banerjee deserve to be appropriately punished for the disobedience of this Tribunal's direction by them. The appellant Company is penalised with a penalty of Rs. 5 lacs. The Directors are sentenced to civil imprisonment for a period of one week. However, the direction for their detention in civil prison will remain in abeyance for a period of two weeks from today to enable them to approach the higher Forum for appropriate reliefs. They will, in any case, appear before this Tribunal in person on 26.9.2017 when further orders in respect of execution of this punishment will be passed.