* IN THE HIGH COURT OF DELHI AT NEW DELHI + CCP(O) No. 120/2005 in OMP No. 342/2004 % 4 th November, 2015 NATIONAL HIGHWAYS AUTHORITY INDIA (NHAI)... Petitioner Through: Mr. Mukesh Kumar, Ms. Suchite and Mr. Siddharth Agarwal, Advocate. versus M/S YOU ONE-MAHARIA (JV) & ORS. F+... Respondents Through: Mr. Ravikesh K. Sinha, Advocate CORAM: HON BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL) CCP(O) No. 120/2005 1. In this contempt petition a detailed judgment was passed by a learned Single Judge of this Court way back on 22.2.2010 holding that the respondents are guilty of contempt of disobeying the directions given in paragraphs 41 and 42 of the Judgment dated 4.4.2005 in OMP No. 342/2004 filed by the petitioner against the respondents. These paragraphs 41 and 42 CCP (O) No. 120/2005 Page 1 of 7
read as under:- 41. Further, mandatory directions are issued to the first respondent to furnish a bank guarantee in sum of Rs.2 crores (Two crores) in favour of the petitioner and as per the format of the guarantees which have been found to be forged. Said bank guarantee to be kept alive till decision on the disputes between the parties by the arbitral tribunal. 42. Petitioner would be entitled to cost against the first respondent in sum of Rs.25,000/-. 2. This Court is today concerned with the non-compliance of para 41 of the said judgment. 3. Very briefly the facts in terms of the Judgment dated 4.4.2005 can be noticed and which are that the petitioner had given mobilization advance to the respondent no.1 joint venture concern of which the respondents no. 2 to 12 were partners or in-charge of the joint venture, but the bank guarantees given to the petitioner for taking mobilization advance were found to be forged bank guarantees. Accordingly, till decision of the arbitration proceedings, the respondents were directed to submit bank guarantees in substitution of the forged bank guarantees which they had submitted to the petitioner for taking the mobilization advance. CCP (O) No. 120/2005 Page 2 of 7
4. Paragraphs 23 and 24 of the Judgment of a learned Single Judge dated 22.2.2010 holding the respondents guilty of contempt of court read as under:- 23. In the present instance, I find that disobedience of the order dated 04th April, 2005, is wilful inasmuch as it is intentional and deliberate. In fact, despite the order dated 04th April, 2005 and the Division Bench s order dated 13th November, 2006, respondents have taken no steps till date to comply with the mandatory directions. Consequently, I hold the respondents guilty of contempt as they have wilfully disobeyed this Court s order dated 04th April, 2005. 24. I direct the respondents to be personally present in Court on the next date of hearing for being sentenced. In case, any of the respondents wish to state anything with regard to sentencing, they may file their affidavits within a period of four weeks from today. List on 17th May, 2010. 5. As per the amended memo of parties filed there are a total of 11 respondents in this contempt petition. Only respondent nos.1 and 3 Sh. Vinod Goel is represented. Original respondent nos.4 and 5 Dr. Vinay Goel and Smt. Nirmal Devi have expired. Original respondent no.6 Sh. Babu Ram Gupta was discharged by an order of this Court. Therefore, the issue is of punishment of Sh. Vinod Goel (respondent nos. 1 and 3), Mr. Ki Young Lee (respondent no.2), Sh. P.M. Kumar (respondent no.6), Mr. Young II Lee (respondent no.7), Mr. Myung Joon Koo (respondent no.8), Mr. Young Jim CCP (O) No. 120/2005 Page 3 of 7
Park (respondent no.9), Mr. Eoon Gucho (respondent no.10) and Mr. Ki Han Kim (respondent no.11). 6. I do not have to go into the merits of the matter as to whether or not the respondents are guilty of contempt of court as this aspect has achieved finality in terms of the Judgment of a learned Single Judge of this Court dated 22.2.2010 and I have only to decide the aspect of sentencing. 7. Respondent nos.1 and 3/Sh. Vinod Goel who is represented through counsel relies upon the judgment of the Supreme Court in the case of Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344 and Section 13 of the Contempt of Courts Act, 1971 to argue that truth is now a defence and since the respondent no.1 Mr. Vinod Goel does not have monies to give fresh bank guarantees for an amount of 2 crores, hence this truth of not having monies is a reason why this Court should not punish the respondent no.1. 8. Clearly, the present is a case where actions of the respondents in the contempt petition if allowed to be condoned, will result in substantial interference with or tending to substantially interfering with due course of justice. The respondents had the gumption to take a huge amount of Rs.2 crores of mobilization advance from the petitioner by furnishing forged bank CCP (O) No. 120/2005 Page 4 of 7
guarantees and therefore, para 41 of the Judgment dated 4.4.2005 in OMP No. 342/2004 categorically directed the respondents to furnish proper bank guarantees for a sum of Rs.2 crores in favour of the petitioner, but that action has not been taken and consequently by the Judgment dated 22.2.2010 respondents were held guilty of contempt of court. 9. I may note that it is only in execution proceedings that there is a defence available to a judgment debtor that he has no means to pay amounts under the money decree and therefore he should not be imprisoned, but, this defence that the respondent in a contempt petition is not able to pay monies should be taken as defence of truth for not sentencing the contemnor is not an argument which is covered under Section 13 of the Contempt of Courts Act. Also Section 13 of the Contempt of Courts Act when talks of truth as a defence, the said aspect is relatable to the truth or falsity of the contemptuous statement which is made and with respect to which truth is given as a defence that the allegation even if contemptuous is justifiable because of its truth. Clearly therefore the judgment in the case of Subramanian Swamy (supra) relied upon by the respondent nos. 1 & 3 has no application to the facts of the present case. CCP (O) No. 120/2005 Page 5 of 7
10. In view of the above discussion, and pursuant to the powers conferred on this Court under Section 12 of the Contempt of Courts Act 1971, I sentence the following respondents to imprisonment of six months with fine of Rs.2,000/- to be paid by each of the contemnors. The contemnors who are sentenced to imprisonment and payment of fine are as under:- 1. Sh. Vinod Goel (respondent nos. 1 and 3) 2. Mr. Ki Young Lee (respondent no.2) 3. Sh. P.M. Kumar (respondent no.6), 4. Mr. Young II Lee (respondent no.7), 5. Mr. Myung Joon Koo (respondent no.8), 6. Mr. Young Jim Park (respondent no.9) 7. Mr. Eoon Gucho (respondent no.10) 8. Mr. Ki Han Kim (respondent no.11) 11. On the petitioner filing the necessary process fee for issuance of the warrants of arrest against the respondents, let warrants of arrest be issued against the aforesaid 8 number of respondents for their being arrested and committed to imprisonment for a period of six months. 12. Let non-bailable warrants be issued against the respondents returnable on 2 nd March, 2016. On the contemnors other than the CCP (O) No. 120/2005 Page 6 of 7
contemnors Sh. Vinod Goel and Sh. P.M. Kumar, petitioner will be entitled in accordance with law, to get the necessary warrants of arrest executed against the said respondents as these respondents are not residents of India but being Korean Nationals are residents of Korea. NOVEMBER 04, 2015 VALMIKI J. MEHTA, J. ib CCP (O) No. 120/2005 Page 7 of 7