SHYAM SAHNI versus ARJUN PRAKASH AND OTHERS on 19 March 2020

[2020] 7 S.C.R. 117

SHYAM SAHNI

v.

ARJUN PRAKASH AND OTHERS

(Civil Appeal No. 2210 of 2020)

MARCH 19, 2020

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Contempt of Court – Deposit of passport to ensure presenceand compliance of the order of the Court – Appellant filed a civilsuit seeking declaration, possession, permanent injunction and alsofor partition of the suit property owned by his late mother – Motherof the appellant had constructed a main building having groundfloor and first floor – According to respondent no. 1, the saidproperty was equally divided by mother of appellant between herson-appellant and her daughter (respondent no. 1’s mother) – TheSingle Judge of the High Court vide order dated 02.06.2008 grantedinterim injunction restraining the respondent no.1 and his fatherfrom alienating or creating 3[rd] party interest in the suit property –Thereafter, a Company formed by respondent no. 1, his wife andhis father, took a term loan from a Bank and first floor of the saidsuit property was created as a secondary collateral security – Bothrespondent no. 1 and his father gave undertaking in the Court thatthey will clear the charge created on the suit property in 4 months –However, they failed to comply the undertakings given by them –Thereafter, various contempt applications were filed againstrespondent no. 1 and his father, which were followed by repeatedundertakings and the same were not complied with – The SingleJudge of the High Court directed respondent no. 1 to surrender hispassport vide order dated 26.05.2017 to ensure his presence andhis compliance of the order of the Court – However, Division Benchof the High Court set aside the said order of the Single Judge of theHigh Court – On appeal, held: Since repeated undertaking werefiled and the same were not complied with, the Single Judge of theHigh Court directed respondent no. 1 to surrender his passport –The said order was passed to ensure the presence of the firstrespondent and compliance of the order of the Court – It cannot besaid that the Single Judge exceeded the jurisdiction or committedan error in ordering surrender of the passport – In order to ensure

117

A

B

C

DE

F

G

H

118SUPREME COURT REPORTS

Athe presence of the parties in the contempt proceedings, the Courtis empowered to pass appropriate orders including the surrenderof passport – The Single Judge had not ordered impounding of thepassport – The Single Judge had directed respondent no. 1 to deposithis passport in the Court – The Division Bench was not right insetting aside the order of the Single Judge – The order of the SingleBJudge of the High Court directing to deposit his passport isconfirmed.

Allowing the appeal, the Court

HELD: 1. The short point falling for consideration isCwhether respondent No.1 is to be proceeded for contempt andwhether the Single Judge was right in directing the deposit offirst respondent’s passport. Of course, on 15.07.2013, father ofrespondent no.1 and respondent No.1 filed an undertaking thatthey shall clear dues of Bank of India and the suit property shallbe cleared of all charges/encumbrances within a period of fourDmonths and that they shall make arrangement of the loan amountto be paid to the Bank of India from other moveable andimmoveable properties. Subsequently also, respondent No.1 andhis father filed an undertaking before the Court. Having filed theundertaking, it was required of the first respondent to keep upEto his undertaking filed before the Court. On behalf of respondentNo.1, his counsel submitted that respondent No.1 was makinggenuine efforts to pay the amount to the Bank and clear the chargeon the property; but due to unavoidable circumstances, they couldnot clear the charge over the suit property. As pointed out earlier,father of respondent no.1 was suffering from illness and passedFaway within one week after the order was passed on 20.10.2015.[Para 24][128-D-G]

2. Since repeated undertakings were filed and the samewere not complied with, Single Judge directed respondent No.1to surrender his passport. The said order was passed to ensureGthe presence of the first respondent and compliance of the orderof the Court. It cannot be said that the Single Judge exceededthe jurisdiction or committed an error in ordering surrender ofthe passport. In order to ensure the presence of the parties inthe contempt proceedings, the Court is empowered to pass H

appropriate orders including the surrender of passport. Whiledealing with child custody matter, in David Jude vs. Hannah GraceJude and Another (2003) 10 SCC 767, the Supreme Court directedUnion of India to cancel the passport of contemnor No.1 and totake necessary steps to secure the presence of contemnor No.1with the child in India and to ensure her appearance before theCourt on the date of hearing. [Para 25][128-G-H; 129-A-B]

3. It is pointed out that the Division Bench proceeded as ifthe Single Judge has ordered impounding of the passport ofrespondent No.1; whereas, the Single Judge has only directedrespondent No.1 to deposit his passport in the Court. Asdiscussed earlier, the purpose of directing respondent No.1 tosurrender his passport was only to ensure the presence ofrespondent No.1 who was filing repeated undertakings beforethe Court but was not complying with the same. In view of thisCourt, the Division Bench was not right in setting aside the orderof the Single Judge in directing respondent No.1 to deposit hispassport before the Court and the judgment of the Division Benchcannot be sustained. In order to ensure the presence ofrespondent No.1 and to ensure further progress of the trial, theorder of the Single Judge directing respondent No.1 to deposithis passport before the Court stands confirmed. [Para 26][129-C-E]

David Jude v. Hannah Grace Jude and Another (2003)10 SCC 767 – relied on.

Case Law Reference

(2003) 10 SCC 767relied onPara 25

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2210of 2020.

From the Judgment and Order dated 01.08.2018 of the High Courtof Delhi at New Delhi in FAO (OS) No. 210 of 2017.

Jayant Bhushan, Sr. Adv., Dinesh Chandra Pandey, Piyush Sharma,Alok Kumar, Ms. Shubhangi Tiwari, Jawahar Lal, Mohammad Sajid andV. Elanchezhiyan, Advs., for the appearing parties.

AB

C

D

E

F

G

H

120SUPREME COURT REPORTS

[2020] 7 S.C.R.

AThe Judgment of the Court was delivered by

R. BANUMATHI, J.

1. Leave granted.

2. This appeal has been filed assailing the impugned judgment andBfinal order dated 01.08.2018 passed by the High Court of Delhi at NewDelhi in FAO (OS) No.210 of 2017 in and by which the Division Benchof the High Court has set aside the order of the learned Single Judge andallowed the appeal filed by respondent No.1 (defendant No.4) herein byholding that the passport of respondent No.1 (defendant No.4) ought notto have been ordered to be detained and further directed return of theCpassport of respondent No.1 (defendant No.4).

3. Brief facts which led to filing of this appeal are as follows:-

3. Brief facts which led to filing of this appeal are as follows:- The appellant filed a civil suit being CS (OS) No.1134 of 2008before the High Court seeking declaration, permanent injunction andDpossession of the suit property being the first and second floor of theresidential house constructed upon Plot No.68, Friends Colony (West),New Delhi. Alternatively, appellant has sought the partition of the suitproperty. Case of the appellant is that in 1954, Late Niamat Sahni acquiredPlot No.68, Friends Colony (West), New Delhi, measuring 3000 sq. yardsfrom Friends Colony Cooperative Housing Building Society LimitedEwherein, she constructed a main building having a ground floor and firstfloor. Niamat Sahni herself and with her son Shyam Sahni (appellant)and his family were residing in the ground floor. Soon after the demiseof Niamat Sahni, the appellant came to know that Sarabjit Prakash andrespondent No.1 have executed documents purporting to be sale deedsand other documents in their favour or in favour of other persons quaFfirst floor and second floor and terrace in the residential buildingconstructed upon 68, Friends Colony (West) New Delhi belonging tomother of the appellant, the appellant has filed a civil suit seekingdeclaration, possession and permanent injunction and also for partition inCS (OS) No.1134 of 2008 which is pending at the stage of cross-Gexamination of the defendants witnesses.

4. Respondent No.1 resisted the suit contending that firstrespondent’s mother Usha Prakash took physical possession of the firstfloor and terrace and the second floor in 1974 and the same was let out.On 13.08.1984, Niamat Sahni made a registered will in Hindi dividingHequal shares between her son- appellant Shyam Sahni and her daughter Usha Prakash (mother of respondent No.1). On 23.12.1992, NiamatSahni also made another registered will in English which was identical toher previous will made in 1984. It is stated that on 06.12.1999, anIrrevocable Memorandum of Family Settlement was signed betweenthe appellant and Usha Prakash (mother of respondent No.1) whichwas confirmed by Niamat Sahni thus, dividing 50% of the undividedshare in the plot of land between her son and daughter. According torespondent No.1, as per settlement, ground floor of the suit propertywas given to the appellant with the entire parking, garages and servantquarters on the left side of the property; while the first floor and alsosubsequent floors (with entire parking and front entrance on the rightside of the suit property) were given to Usha Prakash-mother ofrespondent No.1. According to respondent No.1, the family settlementdated 06.12.1999 is an irrevocable Family Settlement between theappellant and Usha Prakash and was also acted upon dividing the suitproperty by meets and bounds. Respondent No.1 has further stated thatNiamat Sahni had executed a General Power of Attonery on 03.01.2002and pursuant to the said Power of Attorney, Usha Prakash sold threeflats on the second floor to separate parties and first floor to her husbandSarabjit Prakash by way of separate registered sale deeds. On 26.06.2005,Usha Prakash passed away due to cancer.

5. Respondent No.1 further stated that in October, 2007, M/s.Soul & Attires Creations Private Limited (a company formed by firstrespondent, his wife and his father Sarabjit Prakash) took a term loanfor Rs.4.25 crores from Bank of India. Sarabjit Prakash also stood asthe Guarantor for the said project funding loan from the Bank of Indiaand an equitable mortgage has been created on the first floor of theproperty as the secondary collateral security to Bank of India as perRBI guidelines. In the written submission, first respondent has furtheralleged that the appellant had filed a civil suit being CS (OS) No.1134 of2008 concealing the factum of irrevocable Memorandum of FamilySettlement on 06.12.1999. In October, 2008, an additional Working CapitalLimit (stated to be against Stocks and Book Debts) was granted to theaforesaid company by the Bank of India for Rs.5 crores. By end of2009, the account of M/s. Soul & Attires Creations Private Limited wasdeclared as Non-performing Assets by Bank of India and Bank of Indiatook physical possession of the first floor on 31.10.2011. Since the loanhas become Non-performing Assets, Bank of India had filed O.A. No.297of 2011 before DRT, New Delhi and the same was decreed by DRT and AB

C

D

E

F

G

H

ARC No.172/2012 was issued by the Bank of India and the recoveryproceedings are still going on before the Recovery Officer.

6. The grievance of respondent No.1 is that the loan facility wasavailed and equitable mortgage was created even in the first week ofOctober, 2007 much prior to the ex-parte order dated 02.06.2008. FurtherBgrievance of the first respondent is that they were not heard beforegranting the ex-parte stay on 02.06.2008.

7. The learned Single Judge vide order dated 02.06.2008 grantedinterim injunction restraining the defendants from selling, alienating orcreating any third party rights in the suit property. Taking note of theCplaint averments that defendant No.1-Sarabjit Prakash and respondentNo.1 are raising further construction on the suit property and they havebeen creating documents executed by Usha Prakash and otherdefendants, the learned Single Judge found that the balance ofconvenience lies in favour of the appellant-plaintiff thereby, granted theex-parte order of stay on 02.06.2008.D

8. Aggrieved by the disobedience of the injunction order by thedefendants, the appellant filed an application being I.A. No.19801 of2011 under Order XXXIX Rule 2A CPC read with Sections 10 and 12of the Contempt of Courts Act for breach of injunction order dated02.06.2008. It is alleged that in spite of above injunction order, respondentENo.1 (defendant No.4) and defendant No.1 (Sarabjit Prakash) who isfather of respondent No.1 availed financial facilities from Bank of Indiaby mortgaging the first floor of the suit property to the tune of Rs.4.20crore to Rs. 5.20 crore which was enhanced on two different occasionsi.e. when the defendants created charge over suit property to Rs.9.24Fcrore and later on, to Rs.11 crore.

9. The contempt petition was heard by the learned Single Judgeon various dates and number of orders came to be passed. Thoughnumber of orders have been passed, we will only refer to those of theorders which are relevant for consideration of this appeal. On 05.12.2011,Gwhen the matter came up for hearing, learned Single Judge confirmedthe injunction order dated 02.06.2008 directing the parties to maintainstatus-quo with respect to the suit property. In the subsequent hearing,by order dated 21.05.2013, learned Single Judge held defendant No.1guilty of contempt and directed defendant No.1 and defendant No.4-respondent No.1 to appear before the Court disclosing the list of assets.HOn 02.07.2013, both defendant No.1 and defendant No.4-respondent

No.1 submitted that the charge so created on the suit property will becleared by them within four months from their own funds and resources.Accordingly, the Court directed defendant No.1-Sarabjit Prakash andrespondent No.1-defendant No.4 to file an undertaking in this regard.The said direction was complied with and both of them submitted theirrespective undertakings on 15.07.2013. However, on 16.12.2013, Courtrecorded that despite submitting their undertaking to that effect, bothSarabjit Prakash and respondent No.1 (defendant No.4) have failed tocomply with the undertakings given by them.

10. Being aggrieved, appellant filed I.A. No.41 of 2013 underOrder XXXIX Rule 2A read with Section 151 of CPC with Sections 10and 12 of the Contempt of Courts Act against respondent No.1 (defendantNo.4) and his father Sarabjit Prakash (defendant No.1) for not complyingwith the respective undertaking/statement. Respondent No.1 along withhis father Sarabjit Prakash-defendant No.1 filed a joint reply pleadingtheir insolvency and difficulties in clearing the charge and furnishedanother undertaking to clear charge over suit property from the amountreceived from selling the suit property and another property at 33, SundarNagar, New Delhi. In the meanwhile, defendant No.1 died on 28.10.2015.

11. On the next date of hearing, the Court recorded that respondentNo.1 (defendant No.4) had left Delhi and shifted to Singapore with hisfamily and counsel for respondent No.1 was directed to file fresh addressof respondent No.1 along with the relevant documents to establish theproof of his residence. The said direction was again reiterated on28.07.2016. Respondent No.1 filed an affidavit wherein he claimed thathe is still living in Delhi and did not mention his Singapore resident details.On the next date of hearing i.e. on 29.09.2016, the Court recorded thatrespondent No.1 has till date not liquidated the amount as stated by him,therefore, his personal presence was directed in the court on 04.11.2016.Despite such direction, respondent No.1-defendant No.4 was not presentbefore the court and on the next date of hearing i.e. on 13.02.2017, theproceedings were set ex-parte qua respondent No.1.

12. On 02.03.2017, the court recorded that the charge on the suitproperty has still not been cleared till date and respondent No.1-defendantNo.4 was asked to deposit his passport and furnish security. Accordingly,respondent No.1-defendant No.4 offered three properties situated inAmritsar owned by his mother-in-law (Rama Khanna) as a security andhis passport was deposited in the custody of Court Master. Respondent AB

C

D

E

F

G

H

ANo.1 thereafter filed an undertaking to the effect that passports of hisfamily members be revoked and proceedings for extradition can beinitiated on his not returning to India. The court vide order dated22.03.2017 accepted the undertaking given by respondent No.1 anddirected the Court Master to hand over the passport to respondent No.1and court directed him to appear on 26.05.2017. Adopting the sameBattitude, respondent No.1 did not comply with the undertaking furnishedby him this time. Noting non-compliance of the earlier order and noticingbreach of repeated undertakings given by him, by order dated 26.05.2017,the Court restrained him from leaving the country and directed him todeposit his passport with the Assistant Registrar.C13. Aggrieved by the order dated 26.05.2017, respondent No.1filed I.A. No.6907 of 2017 seeking recall of the order dated 26.05.2017.As the matter was listed, respondent No.1 once again did not mark hispresence before the Court. It was informed to the Court by the counselappearing on behalf of respondent No.1 that he had not left the country

Das directed by the Court vide order dated 26.05.2017 and that the passportof respondent No.1 would be deposited today itself. Vide order dated30.05.2017, learned Single Judge in Para (5) of the order directed theRegistry to send communication relating to his passport details to theconcerned authorities in terms of Para (4) of the order dated 26.05.2017.Under the same order, respondent No.1 was restrained from leaving theEcountry and the matter was adjourned. It was later revealed from theinspection of court file that a report from the Immigration Departmentwas received reflecting that respondent No.1 was detained while returningto India on 05.07.2017.

14. The appellant once again filed an application being I.A. No.F7557 of 2017 under Order XXXIX Rule 2A CPC read with Section 151of CPC with Sections 10 and 12 of the Contempt of Courts Act seekinginitiation of contempt proceedings and for appropriate directions againstrespondent No.1.

15. Respondent No.1 thereafter approached the Division BenchGof the High Court by filing FAO (OS) No. 210 of 2017 challenging thePara (4) of the order dated 26.05.2017 and Para (5) of the order dated30.05.2017 passed by the learned Single Judge. Vide impugned judgment,the Division Bench allowed FAO (OS) No.210 of 2017 by holding thatthe bank with which the charge was created on the property was not aHparty before the learned Single Judge and that there was no reason to take any coercive steps against respondent No.1-defendant No.4 for hisfailure to honour his commitment qua the bank. Likewise, there was noreasonable justification to impose any restriction like retention of passportand the Division Bench directed return of the passport to respondentNo.1-defendant No.4. Aggrieved by the order of the Division Bench,the appellant came before us.

16. Learned Senior counsel for the appellant has contended thatupon initiation of contempt proceedings by the appellant, respondent No.1gave an unconditional undertaking to clear the charges created over aportion of the suit property within four months; however, such undertakingturned out to be mere words and no such charge was cleared by the firstrespondent within the period which he has undertaken. It was submittedthat respondent No.1 was repeatedly giving evasive replies andundertakings; but failed to comply with the same. Drawing our attentionto the affidavit dated 27.08.2016, learned Senior counsel for the appellanthas submitted that in the said affidavit, respondent No.1 has stated thathe is still residing in Delhi, when in fact he had already shifted along withhis family to Singapore in May, 2016 itself. Learned Senior counsel furthersubmitted that the present case is not a case of impounding of passport;rather the present case is where the learned Single Judge directedrespondent No.1 to deposit the passport as per his undertaking in termsof his affidavit dated 10.03.2017 so as to ensure the presence ofrespondent No.1 since the Court was of the view that respondent No.1would leave India for Singapore. It was contended that while dealingwith the contempt petition, in order to ensure compliance of the ordersof the Court and make sure that the parties adhere to the undertakingsfiled before the Court, the Court has the power to direct deposit of thepassport and the Division Bench erred in setting aside the order of thelearned Single Judge.

17. Per contra, learned counsel appearing for the respondentshas submitted that respondent No.1 and his father Late Sarabjit Prakashhas made all the efforts to clear the bank dues; but due to unavoidablecircumstances, they could not clear the charge. The learned counselsubmitted that the equitable market value of the suit property No.68,Friends Colony (West), New Delhi was made even in October, 2017much prior to the alleged ex-parte stay order dated 02.06.2008. It wassubmitted that the learned Single Judge was not right in passing variousorders restricting the jurisdiction of the DRT for recovery of the Bank A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Adues when the Bank of India is not made a party to the suit. It wasfurther submitted that there is already an order of status-quo passed inthe suit being CS (OS) No.1134 of 2008 and therefore, there was noneed for the learned Single Judge to direct respondent No.1 to deposithis passport and issue direction for not leaving the country. It wassubmitted that in 2012, the bank sought the permission of the Court toBsell the first floor to recover its dues but the bank did not pursue andresultantly, the said application was dismissed and while so, it was notjustified for the learned Single Judge to take the burden of the bank anddirecting respondent No.1 to clear the dues. It was submitted that coercivedirections given by the learned Single Judge compelling respondent No.1Cto clear the dues was not warranted and rightly set aside by the DivisionBench and the impugned order does not warrant interference.18. We have carefully considered the submissions of both thesides and perused the impugned judgment and other materials on record.

19. Sarabjit Prakash was directed to be personally present beforeDthe Court on 30.05.2013. On the next date of hearing i.e. 30.05.2013,Sarabjit Prakash was not present in the Court and the matter was listedfor 02.07.2013. By the order dated 02.07.2013, Sarabjit Prakash(defendant No.1) and respondent No.1-defendant No.4 who were presentin the Court stated that if four months’ time is given to them, they willEensure that the dues of Bank of India are discharged and part of the suitproperty which is charged with the Bank of India namely, First floor of68, Friends Colony (West), New Delhi, shall be freed of all charges/encumbrances. Sarabjit Prakash and respondent No.1 have also statedthat they will file appropriate affidavit to that effect and on such statement,the contempt petition was kept in abeyance for four months. Accordingly,FSarabjit Prakash and respondent No.1 have filed affidavit of undertakingbefore the Court on 15.07.2013 undertaking that they will clear the duesof Bank of India when the property bearing No.68, First Floor, FriendsColony (West), New Delhi shall be freed of all charges/encumbranceswithin a period of four months and that they will make arrangement ofGthe loan amount to be paid to the Bank of India from other moveable andimmoveable properties in the name of Sarabjit Prakash.

20. When the matter was taken up by the Court, the Court notedthat as per undertaking, the amount has not been paid to the Bank andSarabjit Prakash and respondent No.1 have failed to clear the chargeHover the suit property as per undertaking. The appellant again filed I.A

No.41 of 2013 under Order XXXIX Rule 2A against Sarabjit Prakashand respondent No.1 for not complying with the respective undertaking/statement made before the Court. On 24.01.2014, Sarabjit Prakash andrespondent No.1 filed a joint reply stating that due to unavoidablecircumstances, they are unable to clear the charge over the suit propertyand undertaking to clear the charge over the suit property from the amountreceived from 33, Sundar Nagar, New Delhi.

21. On application filed by the appellant in I.A. No.21764 of 2015,on 20.10.2015, the High Court directed that amount of Rs.3.50 croreswill not be utilized by Sarabjit Prakash and respondent No.1 except tothe extent of meeting the medical expenses of Sarabjit Prakash. Oneweek after the above order, Sarabjit Prakash passed away on 28.10.2015at Apollo Hospital, New Delhi due to multiple heart arrests.

22. On 28.07.2016, the Court directed respondent No.1 to furnishhis current address and also the extent of bequest in his favour to theestate of deceased Sarabjit Prakash. It is alleged by the appellant thatrespondent No.1 filed a false affidavit claiming to be residing at B-334,New Friends Colony, Ground floor, Delhi without disclosing the Singaporeaddress. On 02.03.2017, the Court recorded that the encumbrances onthe suit property were not cleared till date and directed respondent No.1to deposit his passport and furnish the security. On the next date ofhearing i.e. 07.03.2017, respondent No.1 offered three properties ownedby his mother-in-law (Rama Khanna from Amritsar) by depositing titledeeds stating that he has no other security to offer. Observing thatrespondent No.1 has failed to comply with his undertakings/statements,on 26.05.2017, the learned Single Judge directed respondent No.1 todeposit his passport and made an order restraining respondent No.1 fromleaving India.

23. According to respondent No.1, he has shown his bonafide byproducing additional security before the Court by depositing original titledeeds of three properties belonging to his mother-in-law (Rama Khannafrom Amritsar) to the tune of Rs.4.45 crores. Learned counsel forrespondent No.1 has submitted that equitable mortgage of the suit property(i.e. 68, Friends Colony (West), First Floor, New Delhi) was made evenin the first week of October, 2007 which was much prior to the ex-partestay order dated 02.06.2008. Learned counsel further submitted that inOctober, 2008, additional Working Capital was granted to the company-M/s. Soul & Attires Creations Private Limited for Rs.5 crores (against A

B

C

D

E

F

G

H

AStock and Book Debts) as per banking regulations. According torespondent No.1, this enhanced limit is never a loan against the property;but only against Stocks and Book Debts. Learned counsel appearing forrespondent No.1 has submitted that respondent No.1 is a bonafide legalowner of the suit property by means of registered will made in his favourby his father-Sarabjit Prakash dated 29.09.2006 who had the legal titleBin his name by way of registered sale deed executed by his wife UshaPrakash in exercise of the power vested in her through the registeredPower of Attorney dated 03.01.2002 given to her by her mother NiamatSahni and thus, respondent No.1 claims title over the suit property No.68,Friends Colony (West), First Floor, New Delhi. The question regardingCthe correctness of the sale deed executed by Usha Prakash – mother ofrespondent No.1 in favour of Sarabjit Prakash and the dispute raisedregarding the title of the property could be determined only in the suitafter parties adduced oral and documentary evidence.

24. The short point falling for consideration is whether respondentDNo.1 is to be proceeded for contempt and whether the learned SingleJudge was right in directing the deposit of first respondent’s passport.Of course, on 15.07.2013, Sarabjit Prakash and respondent No.1 filedan undertaking that they shall clear dues of Bank of India and the suitproperty shall be cleared of all charges/encumbrances within a period offour months and that they shall make arrangement of the loan amount toEbe paid to the Bank of India from other moveable and immoveableproperties. Subsequently also, Sarabjit Prakash and respondent No.1filed an undertaking before the Court. Having filed the undertaking, itwas required of the first respondent to keep up to his undertaking filedbefore the Court. On behalf of respondent No.1, learned counselFsubmitted that respondent No.1 was making genuine efforts to pay theamount to the Bank and clear the charge on the property; but due tounavoidable circumstances, they could not clear the charge over the suitproperty. As pointed out earlier, Sarabjit Prakash was suffering fromillness and passed away within one week after the order was passed on20.10.2015.G

25. Since repeated undertakings were filed and the same werenot complied with, learned Single Judge directed respondent No.1 tosurrender his passport. The said order was passed to ensure the presenceof the first respondent and compliance of the order of the Court. Itcannot be said that the learned Single Judge exceeded the jurisdiction orH

committed an error in ordering surrender of the passport. In order toensure the presence of the parties in the contempt proceedings, the Courtis empowered to pass appropriate orders including the surrender ofpassport. While dealing with child custody matter, in David Jude vs.Hannah Grace Jude and Another (2003) 10 SCC 767, the SupremeCourt directed Union of India to cancel the passport of contemnor No.1and to take necessary steps to secure the presence of contemnor No.1with the child in India and to ensure her appearance before the Court onthe date of hearing.

26. It is pointed out that the Division Bench proceeded as if thelearned Single Judge has ordered impounding of the passport ofrespondent No.1; whereas, the learned Single Judge has only directedrespondent No.1 to deposit his passport in the Court. As discussed earlier,the purpose of directing respondent No.1 to surrender his passport wasonly to ensure the presence of respondent No.1 who was filing repeatedundertakings before the Court but was not complying with the same. Inour view, the Division Bench was not right in setting aside the order ofthe learned Single Judge in directing respondent No.1 to deposit hispassport before the Court and the judgment of the Division Bench cannotbe sustained. In order to ensure the presence of respondent No.1 and toensure further progress of the trial, the order of the learned Single Judgedirecting respondent No.1 to deposit his passport before the Court standsconfirmed.

27. On behalf of the appellant, it is stated that in view of the orderof the Division Bench, the contempt petition has been disposed of by thelearned Single Judge on 04.12.2018 and prayed for restoration of thecontempt petition. Since the suit is of the year 2008 and much of thecourt’s time has been spent on the interim orders and on the contemptpetition, we are not inclined to issue direction for restoration of thecontempt petition. Since, the suit is of the year 2008 and the trial hasalready commenced and the matter is said to have been pending forcross-examination of the defendants witnesses, it is suffice to directearly expeditious disposal of the suit at the same time, ensuring thatrespondent No.1 will be available at the stage when the suit is disposedand in case he suffers an adverse decree.

28. The impugned order of the Division Bench dated 01.08.2018passed by the High Court of Delhi at New Delhi in FAO (OS) No.210 of2017 is set aside and this appeal is allowed. In order to ensure the presence AB

C

D

E

F

G

H

Aof respondent No.1 and to ensure further progress of the trial, the orderof the learned Single Judge directing respondent No.1 to deposit hispassport before the Court stands confirmed. The learned Single Judge isrequested to take up the civil suit being CS (OS) No.1134 of 2008 andcontinue with the trial and dispose the same expeditiously preferablywithin a period of nine months. No costs.B

Ankit Gyan

Appeal allowed.

C

D

E

F

G

H