Shamsuddin Ahmed, J. - (1.) This appeal is directed against the judgment and order dated 13.2.1989 passed in the matter No. 146 of 1988 by a learned Single Judge of this Court.
(2.) To appreciate the contentions raised in this appeal. It is necessary to set out the brief facts giving rise to the same. In between 24th May 1984 to 29th May, 1984, a contract was entered into by and between the respondents, Indian Fibres Limited (Indian Company) and Arther Granwell & Company Limited (English Company). By exchange of telex messages Indian Company agreed to sell F.O.B. Bombay and English Company agreed to purchase 60 m.t. of Guargum of agreed specifications on agreed terms and conditions. On 27.6.84, Indian Company shipped 16,00 bags of Guargum from Calcutta to England in pursuant to the said contract The goods were discharged at Felix Stowed on 2.8.84. The English Company sold 5 m.t. of Guargum to "M/s. Loyns Maid", the well-known manufacturer of ice cream on 2.8.84. The said "M/s. Loyns Maid" rejected the goods on the ground that it was contaminated by insecticides. The English Company immediately kept the Indian Company informed. A dispute arose between the English Company, Arther Granwell, appellants and "M/s. Loyns Maid". The dispute was settled on payment of 10,000 sterling by the English Company to 'M/s. Loyns Maid". English Company asked Indian Company to refund the amount paid by it for the said contaminated bags shipped to England. The English Company by a letter dated 17.3.85 invoked the Arbitration Clause in the contract and intimated the Indian Company that the disputes between the parties are to be referred to Arbitration under the Rules of General Produce Association of London, and called upon the respondent Indian Company to concur in the appointment of an Arbitrator and Umpire. By a letter dated 30.4.85, the Indian Company intimated its refusal to the appointment of an Arbitrator. It took the stand that there was no Arbitration Clause in the agreement for contract between the parties. On 18.6.85, the Indian Company filed an application before this Court under Section 33 of the Arbitration Act with a prayer for declaration that the contract to the parties did not contain any Arbitration Clause, and ex-parte order was obtained restraining English Company from proceeding with the reference in England. The English Company did not come within the jurisdiction of the Calcutta High Court on the plea that the company is not the resident in India and it has no place of business or assets here. On 13.8.85, the learned Single Judge disposed of the application granting the declaration, sought for. The Judge further passed an order of injunction against the English Company restraining it from proceeding with the reference in England. On 26.8.85, the appellant, English Company filed an application before the English Court for extention of time in relation to the Arbitration proceedings. In the said application, a reference was made to a judgment of this Court dated 13.8.85. Accordingly, the Indian Company was informed, but the Indian Company took a stand that the English Court has no jurisdiction in the matter, and. as such refused to take part in the proceedings. On 22.12.85, Mr. Justice Hirst delivered a judgment in England extending time for Arbitration proceedings. The learned Judge considered the judgment dated 13.8.85 delivered by Single Judge of this Court. He differed from the judgment and held that Arbitration Clause has been incorporated in the contract, and that the order passed by the Indian Court was without jurisdiction and not binding on English Company according to well settled principles of private international law. The English Company proceeded with the reference in England, and on 9.5.86 an award was made in its favour. On 19th November, 1987, the English Company filed a suit in the Court of the District Judge at Jaipur-Rajasthan for enforcement of the said Foreign Award under the provisions of the Foreign Awards (Recognition and Enforcement) Act, 1961. Mr. Ramesh Ch. Khattry, who is appellant No. 2, was the Advocate engaged by the English Company. On 9.2.88, Indian Company filed an application in the Calcutta High Court alleging that the filing of the Suit at Jaipur by the English Company was an act of contempt of this Court, in as much as, the said action had violated the final order passed by this Court on 13.8.85, and also prayed for an order restraining the English Company from proceeding with the suit at Jaipur. By a letter dated 13.2.89, the learned Single Judge held the appellant guilty of contempt. The learned Judge also passed an order of injunction against the English Company restraining it from proceeding with the suit filed at Jaipur and also imposed a fine of Rs. 1,000/- on the appellant No. 1. This appeal is directed against the order dated 13.2.89.
(3.) The contempt application was contended by the appellants mainly on two grounds, namely that the order passed on the application under Section 33 of the Arbitration Act dated 18.6.85 and 13.8.85 were without jurisdiction, and does not bind respondent No. 1, namely the appellant herein, and as such question of its violation or committing any contempt of Court does not at all arise. It was also urged that the application for contempt was barred under Section 20 of the Contempt of Courts Act, 1971. The learned Single Judge ultimately held that the order of injunction passed by this Court against the appellant was valid order but it is not enforceable in London. Its violation by respondent No. 1 in London did not amount to committing Contempt of Court. But as soon as the respondent No. 1 submitted to the jurisdiction of Indian Court, contempt proceeding became maintainable against the appellant. The learned Single Judge also held that the attempt on the part of the appellant to enforce the award in violation of the two orders passed by this Court amount to Contempt of Court. The Court was of the view that the appellant No. 2 acted as an agent of appellant No. 1 for enforcing the award, and accordingly, he is also liable for committing contempt of this Court. The defence of the appellants is that the proceeding was barred under Section 20 of the Contempt of Courts Act, 1971, was also repelled by the learned Single Judge. The learned Judge referred to a decision in matter No. 2621 of 1987 (The Tata Iron & Steel Company Limited v. Ramnibas Poddar & Others, AIR 1989 Cal. 375; Overruled. 4 in which it was held that Section 20 of the Contempt of Courts Act 1971 was ultravirus of Article 215 of the Constitution. Taking into consideration the contention raised by the appellants and upon careful consideration of Article 229, 142(1) and (2) and 215 and as well as entry No. 77 of list (i) and entry No. 14 of list (iii) of the 7th Schedule of the Constitution, the learned Judge held that Section 20 of the Contempt of Courts Act is ultravirus of Article 215 of the Constitution, because, according to her, Article 215 in its term is absolute and neither the Parliament nor the said legislature has been empowered by the Constitution to make laws, affecting restricting, limiting or defending the special jurisdiction of the High Court as the Courts of record to punish for its contempt summarily.;