DR. VIJAY MALLYA versus STATE BANK OF INDIA AND ORS. on 31 August 2020

1. These petitions seek review of the Judgment and Order dated09.05.2017 passed by this Court in I.A. Nos.9-12 & 13-16 of 2016 inSLP (C) Nos.6828-6831 of 2016 with I.A. Nos.1-4 of 2016 in and withContempt Petition (C) Nos.421-424 of 2016 in SLP (C) Nos.6828-6831of 2016.

2. The facts leading to the passing of said judgment are set out indetail therein and for the present purposes we may set out followingfeatures.

(A) In OA No.766 of 2013 filed by the special leave petitioners(‘banks’, for short) before DRT, Bengaluru seeking recovery ofRs.6203,35,03,879.32 (Rupees Six Thousand Two Hundred and ThreeCrores Thirty Five Lakhs Three Thousand Eight Hundred and SeventyNine and Paise Thirty Two only), an oral undertaking was given on26.07.2013 by respondent Nos.1 to 3 that they would not alienate ordispose of their properties. One of the prayers made before DRT,Bengaluru was:- “(iii) to issue a garnishee order against Respondent Nos.10 and11 from disbursing US$ 75 million,…”

(B) When the matter reached the High Court of Karnataka, twoorders were passed by the High Court on 03.09.2013 and 13.11.2013,the relevant portion of the first Order being:- “In that view, there shall be interim order of injunction against theRespondent Nos.1 to 3 from transferring, alienating, disposing orcreating third party rights in respect of movable as well asimmovable properties belonging to them until further order in thesepetitions.”

(C) Admittedly, the amount of US$ 40 million which was part ofthe sum of US$75 million was received in the account of respondentNo.3 on 25.02.2016 and within few days, that is, on 26.02.2016 and29.02.2016, said amount of US$ 40 million was transferred out of thataccount by respondent No.3.

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A(D) Despite repeated orders passed by this Court, no cleardisclosure of his assets was made by respondent No.3, nor any detailsof in-flow and out-flow of said amount of US$ 40 million were disclosedby him. As a matter of fact, the existence of the concerned Bank accountitself was not disclosed.B3. In the circumstances, on the issue whether he was guilty of B3. In the circumstances, on the issue whether he was guilty ofcontempt of court, it was submitted on behalf of respondent No.3 that interms of the directions issued by this Court, he was required to disclosethe assets as on 31.03.2016 and as such no direction issued by this Courtwas violated; and that the violation, if any, was of the orders passed bythe High Court and, therefore, this Court ought not to proceed in contemptCjurisdiction. After hearing learned counsel for the parties, respondentNo.3 was found guilty of contempt of court on following two counts: -

“(a) He is guilty of disobeying the Orders passed by this Court innot disclosing full particulars of the assets as was directed by thisCourt.D(b) He is guilty of violating the express Orders of Restraint passedby the High Court of Karnataka in the same Cause from whichthe present proceedings have arisen.”

4. During the course of its judgment, this Court relied upon theEresponse filed by the banks to the “further counter affidavit” filed byrespondent No.3. This response had adverted to the oral undertakinggiven by respondent Nos.1 to 3 before DRT, Bengaluru and to the ordersdated 03.09.2013 and 13.11.2013 passed by the High Court of Karnataka.

5. It must be stated here that the order dated 11.01.2017 passedFby this Court had given liberty to respondent No.3 to file reply to theaforesaid response of the banks. It appears from the record that a replywas filed by respondent No.3 on 30.01.2017. However, it was observedin Para19 of the judgment under review as under:- “19. Despite the aforesaid Order dated 11.01.2017 which tookGnote of the violation of the orders passed by the High Court ofKarnataka and though time was sought to file reply, nothing wasfiled in reply or rebuttal by Respondent No.3.”

To similar effect were the observations in Para 27 of the Judgmentthat no reply was filed by respondent No.3:- H

6. In the instant Review Petitions, it is specifically asserted inground “V” as under:- “(v) FOR THAT this Hon’ble Court while passing the said judgmenthas erred in recording that the Review Petitioner did not file areply or rebuttal to the response dated 8th December 2017(“Response”) filed by the Respondent Banks (OriginalPetitioners). Pursuant to the order dated 11.01.2017 passed bythis Hon’ble Court a reply dated 30th January, 2017 was filed onbehalf of the Review Petitioner to the Respondents’ (OriginalPetitioners’) Response.”

7. The Review Petitions were placed in Chambers three yearsafter the filing. Taking note of the aforesaid ground, the Review Petitionswere directed to be placed in open Court. Thereafter, the concerneddocuments including Memo of Filing dated 30.01.2017 and copy of thereply dated 30.01.2017 were placed for our perusal.

8. From these facts it is clear that it was an error on part of thisCourt to have observed and proceeded on the premise that no reply wasfiled by respondent No.3 to the response filed by the banks.

9. Mr. Jai Munim, learned counsel appearing for respondent No.3was therefore asked if there was anything in said reply dated 30.01.2017(a) which, in any way, contradicted or contested the basic submissionsof the banks that there was an oral undertaking given to DRT, Bengaluruon 26.07.2013 and orders dated 03.09.2013 and 13.11.2013 were passedby the High Court of Karnataka at Bengaluru; (b) whether the text andthe purport of the undertaking and the orders were different from thatsuggested in said response of the banks; and (c) whether any explanationwas forthcoming in the reply of respondent No.3 to support the standthat he was not guilty of violation of said orders.

10. Mr. Munim, learned Advocate was unable to refer to anysuch portion from the response of respondent No.3 on aforesaid aspectsbut advanced submissions touching upon the questions whether thedirections issued by this Court were violated and whether this Courtought to have proceeded to exercise contempt jurisdiction when thecontempt, on second count, was of the orders passed by the High Courtof Karnataka.

11. The Review Petitions were listed for oral hearing to ascertainwhether the error on part of this Court in not taking into account the AB

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Areply dated 30.01.2017 had caused any prejudice to respondent No.3.The reply dated 30.01.2017 had reiterated the submissions advancedearlier by respondent No.3 and had not in any way contradicted thefactum of oral undertaking given to DRT, Bengaluru and the orders passedby the High Court of Karnataka or had offered any explanation whysaid oral undertaking and the orders could not be relied upon.B

12. Though the scope of review was thus limited, we have carefullyconsidered the submissions advanced by Mr. Munim. Those submissionswere dealt with and rejected in the judgment under review. In ourconsidered view, the attempt on part of the respondent No.3 to have re-hearing in the matter cannot be permitted nor do the submissions makeCout any “error apparent on record” to justify interference in reviewjurisdiction.

13. These Review Petitions are, therefore, dismissed.

14. In Paras 30 and 31 of the judgment under review the contemptDpetitions were directed to be listed on 10.07.2017 for hearing respondentNo.3 with regard to the proposed punishment. Now that the ReviewPetitions are dismissed, we direct respondent No.3 to appear before thisCourt on 05.10.2020 at 02:00 p.m. and also direct the Ministry of HomeAffairs, Government of India, New Delhi to facilitate and ensure thepresence of respondent No.3 before this Court on that day. A copy ofEthis judgement be sent to the Ministry of Home Affairs for facility andcompliance.

15. List the Contempt Petitions on 05.10.2020.

Divya PandeyF

Peitions dismissed.

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