R.F.NARIMAN, J - (1.) Three contempt petitions are before us, having been filed by Ericsson India Pvt. Ltd. ["Ericsson"] against Reliance Communications Ltd. ["RCom"], Reliance Telecom Ltd. ["RTL"], and Reliance Infratel Ltd. ["RITL"] [hereinafter, collectively referred to as the "Reliance Companies" or "Companies"].
(2.) The brief facts necessary to appreciate these matters are as follows: On 25.01.2013, Ericsson and RCom entered into a Managed Service Agreement whereby Ericsson agreed to provide RCom managed services, i.e., operation, maintenance, and management of RCom's network. Ericsson raised invoices from time to time in consideration of services provided, and on receiving no payment, ultimately issued three notices, each dated 07.05.2017, under the Insolvency and Bankruptcy Code, 2016 ["Insolvency Code"] to the three Reliance Companies, calling upon them to pay an amount of INR 9.78 crore. These notices were replied to on 19.05.2017, whereby the three Reliance Companies stated that the performance of Ericsson had been inconsistent. After this date, discussions took place between the parties, and an understanding was reached for making payment of the outstanding invoices. However, even this understanding fell through, and on 07.09.2017, Ericsson issued a letter to the three Reliance Companies, terminating the agreement between them, and calling upon them to pay the outstanding amount in full. At this stage, on 08.09.2017, Ericsson filed three applications under Section 9 of the Code as operational creditors. On 15.05.2018, the National Company Law Tribunal ["NCLT"] admitted the aforesaid petitions and appointed three Interim Resolution Professionals on 18.05.2018 to carry out the corporate insolvency resolution process. At this stage, appeals were filed against the NCLT order. The National Company Law Appellate Tribunal ["NCLAT"], by order dated 30.05.2018, stayed the orders dated 15.05.2018 and 18.05.2018 passed by the NCLT, and recorded the statement of counsel appearing on behalf of the Reliance Companies that the matter had been agreed to be settled for a sum of INR 550 crore, which would be paid within 120 days' time. The order recorded that both the Reliance Companies as well as Ericsson were to file respective affidavits of undertaking in terms of the statements made before the NCLT. These undertakings were so filed in June, 2018. At this stage, the three Reliance Companies filed a writ petition in this Court on 17.07.2018 in which they asked for quashing/closure of the corporate insolvency resolution process in view of settlement of disputes between them and Ericsson. In this writ petition, by an order dated 03.08.2018, this Court heard learned counsel who appeared on behalf of RCom and its group companies, and recorded that the timeline of 120 days shall be strictly adhered to and payment of INR 550 crore is to be made on or before 30.09.2018. Undertakings to this effect were to be filed before this Court by Chairmen of the Companies concerned. The undertakings that were given by the Chairmen of these Companies, pursuant to this order, were dated 09.08.2018 and are a serious bone of contention between the parties in that these undertakings stated that the sum of INR 550 crore will be paid "upon sale of assets of the company". This being the case, a contempt petition, being Contempt Petition No. 1838 of 2018 ["first contempt petition"], dated 01.10.2018, was moved by Ericsson, in which it was expressly stated that the undertakings were not in terms of this Court's order and that the Companies aforestated have no intention of abiding by their commitment to pay the necessary sum of money within the time stated. Meanwhile, on 27.09.2018, the Reliance Companies applied for extension of time for payment by 60 days, expressly stating that since sale of other spectrum had not reached a stage of completion, in order to enable the Companies to make payments, they would require this extension. Both the application for extension and the contempt petition came up for hearing before this Court on 23.10.2018, and it was made clear, as a last opportunity, that the aforesaid amount must be paid on or before 15.12.2018, and that interest at the rate of 12% per annum would also have to be paid for delayed payment beyond 30.09.2018. It was also made clear that the petition for contempt may be revived if payment is not so made by this date. A second application to extend time was moved on 12.12.2018, citing the same excuse of other spectrum not yet being saleable. This time, extension of time was asked for making the payment within two weeks from the date on which a No-Objection Certificate ["NOC"] is given by the Department of Telecommunications ["DoT"] for sale of other spectrum. On 13.12.2018, this Court made it clear that it was not inclined to grant any such extension, as a result of which, the second application for extension of time was dismissed as withdrawn. While matters stood thus, a letter dated 21.01.2019 was written by the advocates of the three Reliance Companies, who stated that on 09.01.2019, INR 118 crore had already been deposited with the Registry of this Court, and that the total outstanding, as on date, together with interest, would be roughly INR 570 crore. This letter specifically states that the net figure of INR 453 crore would be paid by 31.01.2019, conditional upon withdrawal of the two contempt petitions (a second contempt petition, being Contempt Petition No. 55 of 2019, was also filed on 02.01.2019) and upon withdrawal of pending arbitration proceedings. This was replied to by the advocates of Ericsson, stating that an appropriate application may be moved in the Supreme Court, as once notice of contempt is issued, the Court alone can pass necessary orders to effectuate the settlement. However, on 01.02.2019, the RCom group wrote to various stock exchanges, making it clear that they will now not resist the corporate insolvency resolution process that had hitherto been stayed. This led to the filing of a third contempt petition, namely, Contempt Petition No. 185 of 2019, in which, various prayers were asked for, including issuance of a notice of contempt against the Chairman of the State Bank of India ["SBI"], who headed the Joint Lenders' Forum comprising of 46 financial creditors of the RCom group.
(3.) Shri Dushyant Dave, learned Senior Advocate appearing on behalf of Ericsson, painstakingly took us through the NCLAT order dated 30.05.2018 as well as our orders. According to the learned Senior Advocate, the administration of justice has been sought to be interfered with by the Reliance Companies in two ways. First and foremost, the payment of INR 550 crore to his client was not conditional upon sale of spectrum as is clear from all the orders passed. In fact, this was the understanding of the NCLAT order dated 30.05.2018 by the Reliance Companies, as was clear from the undertakings that were filed by their Directors pursuant to this order. However, mischievously, the undertakings filed pursuant to this Court's order dated 03.08.2018 brought in this condition for the first time, and was directly contrary to this Court's order dated 03.08.2018. He argued that this was the occasion for moving the first contempt petition on 01.10.2018 in which this was pointed out. He also argued that the reply made to the contempt petition, together with the correspondence between the parties, would show that no bona fide efforts were made to pay this sum of INR 550 crore at any stage, and that the plea that the Companies were unable to pay is clearly belied by their own advocates' letter dated 21.01.2019, in which it was stated that full payment would be made within a period of 10 days. He, therefore, argued that both on account of furnishing false undertakings to this Court as well as wilfully breaching the said undertakings and this Court's orders, the administration of justice has been sought to be interfered with. He cited judgments in order to buttress these contentions.;