Misc. Petition (L) No.77 of 2015,Testamentary Petition No.515 of 2014

11th February, 2015.

Petitioner Counsel: Mr. JANAK DWARKADAS, Mr. CYRUS ARDESHIR, Mr. R.J. DWARKADAS, Mr. MUKHARJEE
Respondent Counsel: Mr. THAKKAR, Mr. RAJAN JAISING, Mr. B.K. BARVE, Mr. BAGWE, Ms. LOPA JOSHI, Ms. VANDANA JAISING, Mr. GAURAV MEHTA, M/s. HUSSEINI DOCTOR

Cases Cited:
Advocate General, High Court of Karnataka Vs. Chidambara and Anr., 2004 CrLJ. 493 [Para 17]
Bineet Kumar Singh, AIR 2001 SC 2018 [Para 18]
Leila David Vs. State of Maharashtra & Ors., AIR 2010 SC 682 [Para 20]
Preetam Lal Vs. High Court of M.P., AIR 1992 SC 904 [Para 21]
Ram Antar Shukla Vs. Arvind Shukla, 1995 Supp (2) SCC 139 [Para 22]
T.N. Godavarman Thirumulpad through the Amicus Curiae Vs. Ashok Khot and Anr., 2006 ALL MR (Cri) 2664 (S.C.)=AIR 2006 SC 2007 [Para 24]

JUDGMENT

JUDGMENT :- One Ms. Jaiwantiben Jairam Jaising passed away on 26th January, 2002 (deceased") leaving behind her last Will and Testament dated 13th December, 1997 ("the said will"). Respondent No. 1 - Bansi Jairamdas Jaising and his son Respondent No. 2 - Ravi Bansi Jaising were the executors appointed under the said will of the deceased. The present Petition is filed by one of the beneficiaries/legatees under the said Will seeking removal/discharge/suspension of Respondent Nos. 1 and 2 as executors of the said Will in view of the facts and circumstances more particularly set out in the Petition, for appointment of another executor in place and instead of Respondent Nos. 1 and 2 and for other reliefs more particularly prayed for therein. Respondent Nos.3 to 6 are the beneficiaries / legatees under the said Will and are supporting the Petitioner.

2. Pursuant to the directions of this Court, Respondent No.1 - Bansi Jaising filed his affidavit dated 7th January, 2015, setting out details pertaining to the management of the estate of the deceased by Respondent Nos. 1 and 2 in their capacity as the executors of the last will. In the said affidavit, Respondent No. 1 - Bansi Jaising had stated that the executors had broken the fixed deposit with the HDFC Bank and had invested an amount of Rs. 2,25,00,000/- in a fixed deposit with a Company for which the estate was to receive interest at the rate of 15 per cent per annum. This Court enquired from Respondent No. 1 - Bansi Jaising as to why such a huge amount was withdrawn from the estate by breaking the fixed deposit with HDFC Bank and deposited with an unknown Company. Respondent No.1 informed the Court that he had invested the said amount with a Company by the name of Interllicon Ltd. since the promoters of the Company are his friends and have promised him interest at the rate of 15 per cent per annum on the said amount. This Court informed Respondent No. 1 that the said amount of Rs. 2,25,00,000/- be immediately withdrawn from M/s. Intellicon Pvt. Ltd. with interest accrued thereon and the same be deposited with the Prothonotary and Sr. Master of this Court. Thereupon Mr. Bansi Jaising undertook to withdraw the fixed deposit of Rs. 2,25,00,000/- from Intellicon Pvt. Ltd. with interest accrued thereon and deposit the same with the Prothonotary and Sr. Master of this Court on or before 16th January, 2015. The undertaking was accepted as recorded by this Court in its order dated 9th January, 2015. By the said order, Respondent Nos. 1 and 2 were also directed not to act as executors in respect of the estate of the deceased until further orders and the matter was adjourned to 16th January, 2015 at 3.00 p.m.

3. On 16th January, 2015, one Ms. Seema Khan was present in Court. She informed the Court that she is the representative of Intellicon Pvt. Ltd. and her Company had already transferred an amount of Rs.75 lacs by way of RTGS to the estate account of the deceased. Ms. Khan on behalf of Intellicon Pvt. Ltd. gave an undertaking to pay on or before 30th January, 2015 the balance amount of Rs. 1,50,00,000/- inclusive of interest at the rate of 15 per cent accrued thereon upto 30th January, 2015. The undertaking was accepted. Since it was pointed out to the Court that the name of Intellicon Pvt. Ltd. was not correctly recorded in the order dated 9th January, 2015, this Court asked Ms. Seema Khan to hand over her visiting card to the Associate of this Court to which she informed the Court that she has forgotten her visiting card and is therefore unable to hand over the same to the Associate. The matter was thereafter adjourned to 30th January, 2015.

4. On 30th January, 2015, Ms. Seema Khan appeared before the Court in her purported capacity as the Operation incharge, Mumbai Branch of Intellicon Pvt. Ltd. and informed the court that the Auditors of her Company M/s. Intellicon Pvt. Ltd. have objected to the payment of the balance payment of Rs. 1,50,00,000/- along with accrued interest thereon directly in favour of the Prothonotary and Sr. Master of this Court, but are willing to deposit the said amount in the estate account of the deceased. This Court therefore directed M/s. Intellicon Pvt. Ltd. and its auditors to deposit on 31st January, 2015 by 12 Noon an amount of Rs. 1,50,00,000/- along with accrued interest at the rate of 15 per cent per annum on the sum of Rs. 2,25,00,000/- from the date of deposit by Respondent Nos. 1 and 2 with M/s. Intellicon Pvt. Ltd. till the date of deposit by Intellicon Pvt. Ltd. with the Prothonotary and Sr. Master of this Court.

5. On 2nd February, 2015, the matter was mentioned before this Court by the Advocates for the Petitioner. The Court was informed that M/s. Intellicon Pvt. Ltd. has failed and neglected to deposit the said amount of Rs. 1,50,00,000/- along with the accrued interest thereon by 31st January, 2015 as directed by this Court by its order dated 30th January, 2015. This Court therefore enquired from Respondent No. 1 - Bansi Jaising as to why the Operation In charge of Intellicon Pvt. Ltd. - Ms. Seema Khan was not present before the Court. He informed the Court that she was unable to remain present since she was unwell. In view thereof, this Court directed the Managing Director of M/s. Intellicon Pvt. Ltd. to remain present before this Court on 3rd February, 2015 at 3.00 p.m.

6. On 3rd February, 2015, neither Respondent Nos. 1 and 2 nor Ms. Seema Khan were present in Court. The Advocates appearing for Mr. Bansi Jaising and his son Ravi Jaising informed the Court that they have no instructions in the matter. The Advocates for Respondent Nos. 1 and 2 were therefore directed to contact Respondent Nos. 1 and 2 and obtain the telephone number of the Managing Director of M/s. Intellicon Pvt. Ltd.. The matter was kept back for some time. Thereafter the Advocates for Respondent Nos. 1 and 2 informed the Court that they had made several attempts to contact Respondent Nos. 1 and 2 but their mobile phones were switched off. In view thereof, bailable warrants in the sum of Rs. 10,000/each were directed to be issued against Mr.Bansi Jaising, Ms. Seema Khan and Mr. Sameer S. Parekh . The said warrants were made returnable on 6th February 2015.

7. On 6th February, 2015, the Managing Director of Intellicon Pvt. Ltd. appeared before this Court through his Advocate. He informed the Court that Ms. Seema Khan who had represented Intellicon Pvt. Ltd. on 16th January, 2015 and 30th January, 2015 before this Court and had also given an undertaking to this Court on behalf of the Company - Intellicon Pvt. Ltd. is neither an employee of the Company nor known to the company. Respondent No. 2 informed the Court that Mr. Bansi Jaising is not present in Court since he has been hospitalised. In view thereof, this Court directed Respondent No. 2 to ascertain the whereabouts of Ms. Khan with his father the Respondent No.1 and inform the Court by 5.00 p.m. on 6th February, 2015. At 5.00 p.m. Mr. Ravi Jaising - Respondent No. 2 appeared and informed the Court that he had taken instructions from his father and his father has admitted that he as well as Ms. Khan had made false statements before the Court including that she is the Operation In charge of M/s. Intellicon Pvt.Ltd. and that they shall remain present before the Court on 9th February, 2015 at 3.00 p.m. What transpired in Court was recorded by this Court in its order dated 6th February, 2015, and the Managing Director of Intellicon Pvt. Ltd. as well as Respondent Nos. 1 and 2 were directed to file their Affidavits explaining the transactions pertaining to the deposit of Rs. 2,25,00,000/- from the estate account of the deceased with the Company including the terms of such deposit. The matter was thereafter adjourned to 9th February, 2015.

8. Today Mr. Sameer Parekh, Managing Director of Intellicon Pvt. Ltd. has filed an affidavit before this Court wherein he has inter alia stated as under:

8.1 Some time in May, 2014, there was a requirement of certain services to the Company. When he was discussing the same with Respondent No.2, who is his friend since the last 30 years, Respondent No.2 informed him that he was in a position to provide the same to Intellicon Pvt. Ltd. and asked him to deposit a total sum of Rs. 2.5 crores in two Companies viz. Seagate Shipbrokers Pvt. Ltd. and Seagate Shipping Pvt. Ltd. It was agreed between the parties that if the Companies - Seagate Shipbrokers Pvt. Ltd. and Seagate Shipping Pvt. Ltd. were unable to provide the services in 90 days , the deposit of Rs. 2.5 crores in the two Companies would be returned by the Companies to Intellicon Pvt. Ltd. with interest thereon. Intellicon Pvt. Ltd. thereafter deposited an amount of Rs. 1.30 crores with Seagate Shipbrokers Pvt. Ltd. and Rs. 1.20 crores with Seagate Shipping Pvt. Ltd.

8.2 As the required services could not be rendered within the stipulated period of 90 days, Intellicon Pvt. Ltd. requested Respondent No. 2 to return the monies deposited with the two Companies. Thereafter on 5th November, 2014, and 11th November, 2014, two cheques for Rs. 2 crores and 25 lacs respectively were directly deposited in the Company's account by Respondent No.2. As the Company had paid out Rs. 1.2 crores and Rs. 1.3 crores to the said two Companies, Mr. Parekh being wary of income tax issues repeatedly enquired with Respondent No. 2 as to why there was a payment of Rs. 2 crores from a single account. Thereupon, Respondent No.2 informed him in January 2015 that the total sum of Rs. 2.25 crores had been deposited by him into the Company's account from a trust account. Mr. Parekh therefore requested Respondent No. 2 to return the monies to the Company from the respective Companies i.e. Seagate Shipbrokers Pvt. Ltd. and Seagate Shipping Pvt. Ltd. and not from a third party unrelated to the Company. Respondent No. 2 agreed and assured him that he will shortly remit the funds from the two respective Companies to the Company (Interllicon) and requested him to correspondingly transfer equivalent amounts from the Company to the trust account.

8.3 Thereafter between 16th January, 2015 and 6th February, 2015, Intellicon Pvt. Ltd. received an amount of Rs. 1.75 crores from Seagate Shipbrokers Pvt. Ltd. and Seagate Shipping Pvt. Ltd. In turn corresponding amounts were transferred back by Intellicon Pvt. Ltd. to the estate Account and Rs. 35 lacs were deposited in Court, aggregating to Rs. 1.45 crores. On 6th February, 2015, Intellicon Pvt. Ltd. realised as to what had transpired before the Court and how false and incorrect statements were made by Ms. Seema Khan before the Court, Intellicon Pvt. Ltd. deposited an amount of Rs. 80 lacs with the Prothonotary and Sr. Master of this Court thereby repaying the entire amount of Rs. 2.25 crores to the estate of the deceased. However, Intellicon Pvt. Ltd. has declined to pay any interest on the said amount since as stated hereinabove it is their case that Respondent No. 1Mr. Bansi Jaising and Respondent No. 2 - Mr. Ravi Jaising have made false and incorrect statements before the Court that an amount of Rs. 2.25 cores was invested with Intellicon Pvt. Ltd. by them as the executors of the estate at an agreed interest rate of 15 per cent per annum.

9. Today, Ms. Seema Khan as well as Respondent Nos. 1 and 2 - Mr. Bansi Jaising and Mr. Ravi Jaising are present in Court. This Court has informed Ms. Seema Khan that she is summoned before this Court since she had made false statements before the Court on 16th January, 2015, as well as on 30th January, 2015 that she is the Operation Incharge of Intellicon Pvt. Ltd., Mumbai Branch and had also given undertakings on behalf of the Company to deposit the amounts as stated aforesaid in Court and had also informed the court that it is the Auditors of her Company who are raising an objection to transfer the amounts directly to the Prothonotary and Senior Master of this Court and are insisting that the said amounts shall be transferred to the estate account of the deceased. It now appears that on both the occasions she had made false and misleading statements before this Court that she is representing Intellicon Pvt. Ltd. though she is no way concerned with the said Company. She has therefore interfered with the administration of justice and is also guilty of obstruction of justice. She has therefore committed contempt of this Court and deserves to be punished including by committing her to imprisonment.

10. Ms. Seema Khan has informed the Court that she resides at 301, Star Residency, S.V. Road, Jogeshwari (West), Mumbai400 102. She is B. Com from Aligarh University. She is a family friend of Respondent Nos. 1 and 2. In November, 2014, Respondent No. 1 - Bansi Jaising had approached her and had informed her that since he is facing certain problems, he will be requiring her help viz. to come to the Court and state before the Court that she is representing a Company by the name of Intellicon Pvt. Ltd. Thereafter Respondent No. 1 - Mr. Bansi Jaising approached her on two more occasions reiterating what he had stated earlier and ultimately made her appear before this Court on 16th January, 2015 as well as on 30th January, 2015 and at his instance she made false statements before the Court and gave false undertakings to the Court knowing the same to be false and incorrect. However, she made false statement and gave a false undertaking to the Court only to help her family friends i.e. Respondent Nos. 1 and 2. She has also informed the Court that she was approached to make false statements before the Court only by Respondent No. 1 - Bansi Jaising and not by Ravi Jaising - Respondent No. 2 and that she has never had any meeting with the Advocates of Bansi Jaising and/or Ravi Jaising. She has urged that the Court should accept her unconditional apology and show leniency in inflicting any punishment. In this regard she stated that she is a divorcee. She has two growing children. She has to look after her family. She is truly sorry for what she has done. She has now understood the seriousness of her actions and requests the Court to show her mercy. Her mother is old and that if she were sent to jail, the shock might be very severe for her old mother.

11. Respondent No. 1 - Mr. Bansi Jaising was informed by the Court that he has made Ms. Seema Khan appear before this Court on 16th January, 2015 and 30th January, 2015, and made her to make false statements before the Court that she is the Operation Incharge of Intellicon Pvt.Ltd. Mumbai Branch and to also give an undertaking to the court on behalf of Intellicon Pvt. Ltd. which statements and undertaking were false to his knowledge. Respondent No. 1 was also told that he made Ms. Seema Khan make incorrect statement before the Court qua the Auditors of Intellicon Pvt. Ltd. He also made false statements before the Court that a sum of Rs. 2.25 crores was invested on behalf of the estate with Interllicon Pvt. Ltd. at 15 % interest per annum, when in fact the said amount of Rs. 2.25 crores was used to repay interllicon Pvt. Ltd. the amount paid by Interllicon to Seagate Shipping Pvt. Ltd. and Seagate Shipbrokers Pvt. Ltd.

12. Respondent No. 1 - Bansi Jaising has stated that in November, 2014, he in his capacity as an executor of the last will and testament of the deceased had, in order to secure a higher rate of interest broken the fixed deposit with the HDFC Bank and had invested the said amount with Intellicon Pvt. Ltd.. He submitted that he and/or any of his family members are in no way concerned with either Seagate Shipbrokers Pvt. Ltd. and Seagate Shipping Pvt. Ltd. When he was shown Form 32 dated 7th May, 2010, filed by Seagate Shipbrokers Pvt. Ltd. with the ROC, recording therein that his wife Ratna B. Jaising was appointed as an Additional Director of Seagate Shipbrokers Pvt. Ltd. he had no explanation to offer but to state that he does not recollect that she was a Director of Seagate Shipbrokers Pvt. Ltd. He was also shown reports on the website wherein he was quoted in his capacity as the President of Seagate Shipping Pvt. Ltd. He admitted that he was the President of the said Company but only on paper. Mr. Bansi Jaising also admitted that what is stated by Ms. Seema Khan today before the Court and recorded by the Court is true and correct. He had approached her in November, 2014 and thereafter again on two to three occasions, to inform her that she will be required to come to the Court and make statements before the Court as a representative of Intellicon Pvt. Ltd. When this Court enquired from Mr. Bansi Jaising that if the deposit of Rs. 2.25 crores in November, 2014 with Intellicon Pvt. Ltd. was purely with the intention of getting a higher rate of interest i.e. at the rate of 15 per cent per annum what was the reason for him to approach Ms. Seema Khan and inform her that she may have to appear before the Court and make a statement that she is a representative of M/s. Intellicon Pvt. Ltd. if required. The only answer which Bansi Jaising could give was "this was my judgment". However, Mr. Bansi Jaising admitted that he has made Ms. Seema Khan appear before this Court on 16th January, 2015 and 30th January, 2015 and at his instance and in his presence she has made a false representation to the Court that she is the Operation Incharge of Intellicon Pvt. Ltd., Mumbai Branch and at his instance she also gave a false undertaking to this Court and obtained adjournments from this Court. He has stated that all the statements and undertakings given before this Court by Ms. Seema Khan were at his instance and were false to his knowledge. He has stated that he was aware of the consequences of such false statements being exposed, however such false statements were made through Ms. Seema Khan because he was under pressure. He has stated that he is 76 years old, is sick and therefore the Court should accept his unconditional apology and show leniency in inflicting any punishment.

13. Mr. Ravi Jaising has urged the Court to show leniency in inflicting punishment. He has submitted that he and Bansi Jaising are willing to pay through a wellwisher the amount of Rs. 1.10 crores to the Petitioner towards the loss claimed by the Petitioner and is also willing to give up the claim in the Bandra property and to forthwith hand over the same to the Official Assignee.

14. Mr. Dwarkadas, the Learned Senior Advocate, appearing for the Petitioner, has submitted before me that it is clear that Respondent Nos. 1 and 2 have in collusion with the said Ms.Seema Khan clearly attempted to interfere with the administration of justice by deliberately making false statements before the Court and giving false undertakings knowing the same to be false. In fact, Ms. Seema Khan at the instance and at the behest of Respondent No. 1 has wilfully, deliberately and intentionally impersonated herself as a Operation Incharge of the Company Intellicon Pvt. Ltd. and by making false representations on behalf of Intellicon Pvt. Ltd.. Respondent Nos. 1 and 2 and Ms. Seema Khan have succeeded in seeking adjournments before this Court. By making false statements before the Court, the Court was made to believe that neither Respondent No. 1 nor Ms.Seema Khan or the Company were responsible for the undertakings given to this Court on 9th and 16th January, 2015, remaining unfulfilled, but it was the Company more particularly its Auditors who were preventing the undertaking from being complied with. As it turns out, the Company was not even aware that any such undertaking had been given purportedly on its behalf. Mr. Dwarkadas has submitted that Respondent No. 1 and/or Ms.Seema Khan are guilty of contempt which has been committed in the face of this Court and therefore there is sufficient power and jurisdiction of this Court being the Court of record to pass appropriate orders by adopting a summary procedure. Mr. Dwarkadas has submitted several decisions of the Hon'ble Supreme Court as well as the High Courts in support of his submissions.

15. Mr. Barve appearing for Respondent Nos. 1 and 2 has submitted that Ms. Seema Khan has made a false statement that she was approached by Mr. Bansi Jaising in November, 2014. This Court had to remind Mr. Barve that Respondent No. 1 - Bansi Jaising himself has submitted that he had approached Ms.Seema Khan in November, 2014, and had informed her that she may be required to appear before the Court as and when necessary and make an incorrect statement before the Court that she is an employee of Intellicon Pvt. Ltd.. Mr. Barve thereafter informed the Court that charges may be framed against Respondent No.1 and Ms. Seems Khan and they may be granted bail. Since this Court has already informed Ms. Seema Khan and Mr. Bansi Jaising the reasons as to why they have been summoned by the Court and what are the consequences of them having made false statements/representations before this Court, thereby committing a fraud on the court and they having admitted that they have indeed made false and fraudulent statements before this Court and given undertakings to the Court knowing the same to be false, the question of framing any further charges against them or giving them any further hearing to them does not arise. Mr. Barve thereupon submitted that the Court may adopt a lenient approach against Respondent No.1 and Ms.Seema Khan more so since the Respondent No.1 is 76 years old and is just out of hospital.

16. I have considered the aforestated facts as well as the submissions advanced before me. Ms. Seema Khan and Respondent No. 1 - Mr. Bansi Jaising have admitted before the Court that they have made false and incorrect statements before the Court and have given undertakings to the Court knowing the same to be false and incorrect. I am therefore satisfied that Respondent No. 1 and Ms. Seema Khan are both guilty of having committed grave and serious acts of contempt of this Court inter alia by the following:

16.1 Ms. Seema Khan falsely and intentionally represented/impersonated the OperationinCharge, Mumbai Branch of the company i.e. Intellicon Pvt. Ltd., and was allegedly authorised to remain present before this Court. By this false representation/impersonation, she requested and obtained more time by giving false assurance/undertaking to the Court on behalf of Intellicon Pvt. Ltd. that payment would be made by Intellicon Pvt. Ltd.

16.2 Ms. Seema Khan making statement and representation before the Court on behalf of Company that the Company had already transferred an amount of Rs.75,00,000/- by way of RTGS to the estate account.

16.3 Ms. Seema Khan giving an undertaking, inter alia on behalf of the Company, to this Court to pay the balance amount of Rs.1,50,00,000/- on or before 30th January, 2015 inclusive of interest @ 15% p.a., on or before 30th January, 2015.

16.4 Ms. Seema Khan informing the Court that the Auditors of the Company had sought clarification from this Court as to whether the amount is to be deposited with the Prothonotary & Senior Master of this Court or should be deposited in the estate account of the deceased when in fact the Auditors had no knowledge of these proceedings.

16.5 Generally purporting to represent the Company on the basis of admittedly false statement and representation and pretending to be an officer of the company, authorized to represent the Company before the Court; making statements on behalf of the Company; giving undertaking on behalf of the Company;

16.6 Respondent No. 1 Bansi Jaising informing this Court that Ms. Seema Khan was the Operation inCharge,Mumbai Branch of the Company.

16.7 It was at the instance and behest of Respondent No. 1 that Seema Khan appeared before this Court and impersonated as an Officer of the Company.

16.8 Respondent No.1, aiding and abetting the offence of impersonation by bringing Ms. Seema Khan to the Court and requesting her to make false statements to the Court

17. The above conduct of Respondent No.1 and the said Ms. Seema Khan has scandalized and lowered the dignity of the Court in the eyes of the public. They have committed contempt in the face of the Court. This is an incident taken place in court and within my view. The actions of the contemnors were deliberate, willful and purposely done with a view to completely mislead this Court and derive benefit for themselves. Deliberate false, misleading and incorrect statements were made both by Respondent No.1 and Ms. Seema Khan. Impersonation amounts to contempt of Court. The Hon'ble High Court of Karnataka in the case of Advocate General, High Court of Karnataka Vs Chidambara and Anr. reported at 2004 CrLJ. 493 has stated that by bringing persons to impersonate someone in court is playing a fraud on the court. The High Court in the aforesaid judgment had also held that any person who makes a false statement on oath would be interfering with the administration of justice.

18. The Hon'ble Supreme Court of India in the case of Bineet Kumar Singh reported at AIR 2001 SC 2018 has in clear terms held that a false or misleading or wrong statement deliberately and willfully made by a party to the proceedings to obtain favorable orders would undoubtedly tantamount to interference with the due course of judicial proceedings. In this case both Respondent No.1 and the said Ms. Seema Khan have interfered with the administration of justice.

19. Under Rule 1031 of the Bombay High Court, Original Side Rules 1980 where contempt is committed in view or presence or hearing of the Court, the Court has the power to punish the contemnor either forthwith or on such date as may be appointed by the Court in that behalf. Rule 1031 is reproduced:

"1031 (1) Where contempt of Court is committed in view or presence or hearing of Court, the contemnor may be punished by the Court before which contempt is committed either forthwith or on such date as may be appointed by the Court in that behalf.

(2) Pending the determination of the charge the Court may direct that contemnor shall be detained in such custody as it may specify:

Provided that the contemnor may be released on bail or on such other terms as to undertakings or otherwise as the Court may direct".

20. In the present case, this incident clearly brings to light the fact that the contemnors have no respect for this Court. It clearly shows that the litigants feel that making false statements including undertakings to the Court and thereafter breaching them would have no consequences. This is quite apart from the fact that in the present case both Respondent No.1 and Ms. Seema Khan have played a fraud on this Court. This is a willful, deliberate and contumacious incident, which has taken place in front of my eyes and in open Court, which is truly a very sad state of affairs and shows a complete breakdown of the system. The facts of this case are admitted. It is an admitted position by both Respondent No.1 and Ms. Seema Khan that Ms. Seema Khan impersonated or held herself out to be an officer of the company duly authorized to appear in this Court. She appeared at the behest of Respondent No.1 who aided and abetted her in this impersonation. There is no dispute on this fact. This is a clear contempt in the face of the Court. The Supreme Court in the case of Leila David V/s. State of Maharashtra & Ors. Reported at AIR 2010 SC 682, after considering the relevant law at paragraph 16 stated in clear terms that the Court is not precluded from taking recourse to summary proceedings when a deliberate and wilful contumacious contempt takes place in front of the eyes of the Judge and public at large and the punishment was given forthwith by the Court on holding the contemnors therein guilty of contempt and sending them to prison was upheld. Rule 1031 of the High Court Original Side Rules also empowers me to not only hold the Petitioners in contempt but also sentence them forthwith.

21. In an instructive judgment of the Hon'ble Supreme Court which discusses the summary powers of the Supreme Court and of the High Courts to punish for contempt committed in the presence or of the hearing of the Court, the Hon'ble Supreme Court in the case of Preetam Lal vs. High Court of M.P. Reported in AIR 1992 SC 904 has held thus:

"13. As rightly pointed out by the High Court, these contentions in our opinion do not merit any consideration since every High Court which is a Court of Record is vested with 'all powers' of such Court including the power to punish for contempt of itself and has inherent jurisdiction and inalienable right to uphold its dignity and authority.

14. Whilst Article 129 of the Constitution of India deals with the power of the Supreme Court as Court of Record, Article 215 which is analogous to Article 129 speaks of the power of the High Court in that respect.

15. Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. But the procedure has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate Legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act, 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be 'Courts of Record' under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment. In fact, Section 22 of the Act lays down that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law relating to Contempt of Courts. It necessarily follows that the constitutional jurisdiction of the Supreme Court and the High Court under Articles 129 and 215 cannot be curtailed by anything in the Act of 1971. The above position of law has been well settled by the Hon'ble Supreme Court in Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court, 1954 SCR 454 (AIR 1954 SC 186), holding thus: "In any case, so far as contempt of a High Court itself is concerned, as distinct from one of a subordinate Court, the Constitution vests these rights in every High Court, so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority".

16. It has been further observed:

"The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is'made aware of the charge against him and given a fair and reasonable opportunity to defend himself."

17. In R. L. Kapur v. State of Madras, (1972) 1 SCC 651 : (AIR 1972 SC 858), a question arose did the power of the High Court of Madras to punish contempt of itself arise under the Contempt of Courts Act, 1952 so that under Section 25 of the General Clauses Act, 1897, Sections 63 to 70 of the Penal Code and the relevant provisions of the Code of Criminal Procedure would apply. This question was answered by the Hon'ble Supreme Court in the following words (at p. 859 of AIR):

"The answer to such a question is furnished by Article 215 of the Constitution and the provisions of the Contempt of Courts Act, 1952 themselves. Article 215 declares that every High Court shall be a Court of record and shall have all powers of such a Court including the power to punish for contempt of itself. Whether Article 215 declares the power of the High Court already existing in it by reason of its being a Court of record, or whether the article confers the power as inherent in a Court of record, the jurisdiction is a special one, not arising or derived from the Contempt of Courts Act, 1952, and therefore, not within the purview of either the Penal Code or the Code of Criminal Procedure."

18. After giving the above answer to the query raised, the Hon'ble Supreme Court has reiterated the view held in the case of Sukhdev Singh Sodhi, (AIR 1954 SC 186) (referred supra).

19. The view expressed in Sukhdev Singh Sodhi, (AIR 1954 SC 186) and followed in R. L. Kapur, (AIR 1972 SC 858), has been referred with approval in a recent decision in Delhi Judicial Service Association v. State of Gujarat, 1991) 4 SCC 406: (1991 AIR SCW 2419), holding that the view of the Hon'ble Supreme Court in Sukhdev Singh Sodhi is "that even after the codification of the law of contempt in India, the High Court's jurisdiction as a Court of Record to initiate proceedings and take seisin of the matter remained unaffected by the Contempt of Courts Act, 1926"

22. Yet another question whether the provisions of the Code of Criminal Procedure are applicable to such proceedings has been negatively answered by this Court in Sukhdey Singh Sodhi case, (AIR 1954 SC 186 at p.190) (supra) stating thus:

"We hold therefore that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself."

24. From the above judicial pronouncements of this Court, it is manifestly clear that the power of the Supreme Court and the High Court being the Courts of Record as embodied under Arts. 129 and 215 respectively cannot be restricted and trammelled by any ordinary legislation including the provisions of the Contempt of Courts Act and their inherent power is elastic, unfettered and not subjected to any limit...

29. Reference also may be had to a decision of the Division Bench of the Bombay High Court in State of Bombay v. P., (1958) 60 Bom LR 873 : (AIR 1959 Bom 192), wherein it has been held that the jurisdiction which each Judge of the High Court possesses and uses as constituting a Court of Record is a jurisdiction which is inherent in the Court itself for punishment for contempt of Court, whether it is ex facie the Court or otherwise and that for the exercise of that jurisdiction it is not necessary to refer either to the Letters Patent or the Rules framed by the Court there under and that it is a jurisdiction which is being exercised in the same manner as was exercised in the Court of King's Bench Division in England.

30. The special feature of the procedure, to be followed in a contempt proceeding is the summary procedure which is recognised not only in India but also abroad.

31. It is an outstanding characteristic of the law of contempt both in England and Scotland that it makes use of a particular and summary procedure which is unknown to any other branch of those countries. In England, this summary procedure began to be adopted by the common law Courts inspite of trial by jury and that the trial by jury for contempt has steadily declined and has now fallen entirely into disuse. In other words, consequent upon the use of the summary procedure in England, a person alleged to be in contempt does not enjoy the benefit of some of the safeguards of the ordinary criminal law such as those provided by the Judges' Rules in England and Wales and the right to trial by jury.

32. Rule 42 of the Federal Rules of Criminal Procedure of United States reads that "A criminal contempt may be punished summarily if the Judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court"

33. In Ex parte Terry, (1888)128 US 289,307, 9 S Ct 77, 80 and in Matsusow v. United States, 229 F 2d 335, 339 (5th Cir 1956), it has been ruled that "If the contempt be committed in the face of the Court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination."

34. In the Contempt of Court by Oswald, the following passage relating to the summary power of punishment is found:

"The summary power of punishment 'for contempt has been conferred on the Courts to keep ablaze of glory around them, to deter people from attempting to render them contemptible'in the eyes. of the public. These powers are necessary to keep the course of justice free, as it is of great importance to society."

35. In the year 1899, Lord Moriss in delivering the judgment of the Judicial Committee in Mc Leod v. St. Aubin 1899 AC 549 (C) said:

"The power summarily to commit for contempt is considered for the proper administration of justice."

36. This has long been the practice in India also.

37. The power under Articles 129 and 215 is a summary power as held in the cases of Sukhdev Singh Sodhi, C.K. Daphtary (referred to above) and in Hira Lal Dixit v. State of U.P. AIR 1954 SC 743.

38. Peacock, C.J. laid down the rule quite broadly in the following words in Re Abdool v. Mahtab, 1867 (8 WR) Cr. 32:

"there can be no doubt that every court of record has the power of summarily punishing for contempt."

39. The above view is restated in a number of decisions of this Court.

40. In the case of Sukhdev Singh Sodhi it has been observed:

".......the power of a High Court to institute proceedings for contempt and punish where necessary is special jurisdiction which is inherent in all courts of record and section 1 (2) of the Code expressly excludes special jurisdiction from its scope."

41. The position of law that emerges from the above decisions is that the power conferred upon the Supreme Court and the High Court, being Courts of Record under Articles 129 and 215 of the Constitution respectively is an inherent power and that the jurisdiction vested is a special one not derived from any other statute but derived only from Articles 129 and 215 of the Constitution of India (See D. N. Taneja v. Bhajan Lal, (1988) 3 SCC 26) and therefore the constitutionally vested right cannot be either abridged by any legislation or abrogated or cut down. Nor can they be controlled or limited by any statute or by any provision of the Code of Criminal Procedure or any Rules. The caution that has to be observed in exercising,this inherent power by summary procedure is that the power should be used sparingly, that the procedure to be followed should be fair and that the contemner should be made aware of the charge against him and given a reasonable opportunity to defend himself. "

44. There is an abundance of empirical, decisions upon particular instances of conduct which has been held to constitute contempt of Court. We shall now refer to a few:

47. Lord Justice Donovan in Attorney General v. Butterworth, (1963) 1 QB 696, after making reference to Reg. v. Odham's Press Ltd., ex parte A.G., (1957) 1 QB 73 said, "Whether or not there was an intention to interfere with the administration of justice is relevant to penalty, not to guilt". This makes it clear that an intention to interfere with the proper administration of justice is an essential ingredient of the offence of contempt of Court and it is enough if the action complained of is inherently likely so to interfere.

48. In Morris v. The Crown Offlce, (1970) 1 All ER 1079 at page 1081, Lord Denning, M.R. said:

"The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society." In the same case , Lord Justice Salmon spoke: "The sole purpose of proceedings for contempt is to give our Courts the power effectively to protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented."

50. Frank Furter, J. in Offutt v. U. S.(1954) 348 US 11 expressed his view as follows:

"It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage."

51. In Jennison v. Baker, (1972) 1 All ER 997 at page 1006, it is stated :.

"The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope". (Paras 44 to 51)

52. Chinappa Reddy, J. speaking for the Bench in Advocate General, Bihar v. M. P. Khair Industries, 1980 (3) SCC 311 : (AIR 1980 SC 946), citing those two decisions in the cases of Offut and Jennison (supra) stated thus (para 7 of AIR):

"..... it may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of the judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and, so, it is entrusted with the power to commit for Contempt of Court, not in order to protect the dignity of the Court against insult or injury as the expression on "Contempt of Court" may seem to suggest, but to protect and to vindicate the right of the public that the administration of justice shall not be prevented prejudiced, obstructed or interfered with."

22. The Hon'ble Supreme Court has in the case of Ram Antar Shukla vs Arvind Shukla :1995 Supp (2) SCC 139 held that anyone who takes recourse to fraud deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. The Court further held that these acts or conduct may be to put an obstacle or tends to obstruction or tends to prejudice the right of the opposite party to the litigation in its result or the effective or efficacious prosecution of the proceedings. The tendency on the part of the contemnor in his action or conduct to prevent the course of justice is the relevant fact. To do an act with the intention of preventing the course of justice is not itself enough but the act must have also that tendency and the acts must have been done with an intent to prevent the course of justice.

23. In view thereof, I hold that Respondent No. 1 - Bansi Jaising and Seema Khan are guilty of having committed contempt of this Court and are liable to be proceeded against forthwith.

24. Both the contemnors have expressed their unconditional apology for their contumacious conduct. However, since both Bansi Jaising and Seema Khan had planned/conspired in advance that Ms. Seema Khan will impersonate herself as the officer of Intellicon Pvt. Ltd. and give false undertakings to the Court on behalf of Intellicon Pvt. Ltd. and mislead the Court with the intention to obtain adjournments before the Court, it cannot be said that there was no mens rea involved. I am therefore not prepared to let the contemnors go scotfree by acceptance of their apology. The apology tendered is therefore rejected. In this context, paragraph 18 of the decision of the Hon'ble Supreme Court in T.N. Godavarman Thirumulpad through the Amicus Curiae vs. Ashok Khot and another, reported in AIR 2006 SC 2007 : [2006 ALL MR (Cri) 2664 (S.C.)] is apt and reproduced hereunder:

"18. The inevitable conclusion is that both the contemnors 1 and 2 deliberately flouted the orders of this Court in a brazen manner. It cannot be said by any stretch of imagination that there was no mens rea involved. The fact situation clearly shows to the contrary. Learned counsel appearing for contemnor No.1 and 2 stated that they have tendered unconditional apology which should be accepted. Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness. As was noted in L.D. Jaikwal v. State of Uttar Pradesh (AIR 1984 CriLJ 993) "We are sorry to say we cannot subscribe to the 'slapsay sorryand forget' school of thought in administration of contempt jurisprudence. Saying 'sorry' does not make the slipper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For it is one thing to 'say' sorryit is another to 'feel' sorry".

25. Instead whilst awarding punishment, I propose to accept the plea of leniency which has been made by both the contemnors for the following reasons:

(a) Respondent No. 1 is 76 years of age. He has only recently been discharged from hospital for high blood pressure and heart ailment. Considering his advanced age and health issues and the fact that he has already been adjudged an insolvent, I am satisfied that a prolonged sentence of imprisonment is not required to be passed.

(b) As regards Seema Khan, she has stated that she is divorced with two children and has an aged mother who needs her constant care and attention.

26. In these circumstances, I pass the following order:

(i) Respondent No. 1 - Bansi Jaising and Ms. Seema Khan are hereby placed under arrest till the Court rises for the day.

(ii) Mr. Bansi Jaising undertakes to forward on or before 20th February 2015, a cheque for Rs. 10,00,000/- (Rupees Ten lacs only) to the Advocate for the Petitioner drawn in the name of "Shanti Avedna Sadan" an institution that takes care for the advanced and terminally ill cancer patients, which cheque the Advocate for the Petitioner shall forthwith forward to Shanti Avedna Sadan. The undertaking is accepted.

Ordered accordingly.