Patherya, J. - (1.) By this contempt application the petitioner has alleged violation of the order dated 26th July 2013 by the alleged contemnor respondents. It is the case of the petitioner that the order dated 26th July, 2013 was passed ex parte, in terms of Clause (c) and (d) of the Notice of Motion, till 2nd August, 2013. On the returnable date the order was modified in respect of prayer (d). But the interim order granted in terms of prayer (c) was continued. The maintainability issue was also kept open. By the said order dated 26th July, 2013 the contemnor respondents and each one of them, their respective servants, agents and assigns were restrained from dealing with or withdrawing any fund lying in the bank accounts of the respondents and in particular the respondent no.1 including those accounts mentioned in prayer (d). Steps were taken by the petitioner to communicate the said order and by cover of letter dated 30th July, 2013 a copy of the order along with the Notice of Motion and petition was sought to be served on the alleged contemnor respondents. As will appear from the Affidavit of Service filed by Mr. Chittaranjan Chakraborty affirmed on 31st July, 2013, a copy of the plaint along with G.A.2176 of 2013 and Notice of Motion so also signed copy of the minutes of the order dated 26th July, 2013 was sought to be served on the alleged contemnor respondents at about 5 p.m.
(2.) The Receiving Officer of EIILM Foundation requested Mr. Chittaranjan Chakraborty to wait so that instruction could be taken from his Superiors as it related to a legal matter. After waiting for 30 minutes of handing over the papers, the Receiving Officer of EIILM Foundation refused to receive the said letter and on such refusal Mr. Chittaranjan Chakraborty left the office of the defendant no.1. Thereafter, the letter was despatched along with enclosures by Speed Post with acknowledgement due card at 7 p.m. of 30th July, 2013 from General Post Office (G.P.O.). Affidavit of service was also affirmed by Mr. Chittaranjan Chakraborty on 31st July, 2013 incorporating the said facts. Therefore, EIILM Foundation and its directors so also servants, agents and assigns had knowledge of the order dated 26th July, 2013 on 30th July, 2013 by 5:45 p.m. This will also appear from the Affidavit in Opposition filed by the alleged contemnor respondents to G.A. 2176 of 2013. In paragraph 2 of the affidavit affirmed by one Saurav Mitra on behalf of the respondent nos.1, 4 and 5 on 3rd October, 2013, it has been stated that EIILM Foundation was served with a copy of the Notice of Motion along with a copy of the petition verified by one Suresh Sachdev and a copy of the ex parte order dated 26th July, 2013 on 30th July, 2013, and this paragraph has not been verified. In the opposition filed by the alleged contemnor no.1 on 13th February, 2015 similar averment will be found and this has been affirmed as to be true. This was pleaded by the petitioner in paragraph 9 of the petition in November 2014 and inspite thereof, no attempt has been made by the alleged contemnor respondents to correct the mistake made in the affidavit-inopposition filed in G.A. 2176 of 2013 and while dealing with paragraph 9 of the contempt application, no denial has been pleaded that the order dated 26th July, 2013 was not received on 30th July, 2013. While dealing with paragraph 5 of the contempt application, the alleged contemnor respondent no.1 has sought to give an explanation with regard to order dated 26th July, 2013 received on 31st July, 2013 at 12:55 p.m. when the same was effected on EIILM Foundation and relied on the extract of the Receiving Register (Dak Register). The explanation sought to be given is that, the term used "on and about 30th July, 2013" is a typographical error. From the endorsement made in the Receiving register and the letter dated 31st July, 2013 of the order received on 31st July, 2013 at 12:55 p.m. depicts the correct facts. While dealing with paragraph 5, there is no denial that EIILM Foundation was served with a copy of the plaint, Notice of Motion, application and order. The relevant extract from the Dak Register has been relied upon and is Annexure-B to the affidavit affirmed by the alleged contemnor respondent no.1. This is a Dak register and deals with despatches. There is no despatch made to the advocate on record of the petitioner by EIILM Foundation or the alleged contemnor respondent nos.1 and 2. From the register it will appear that an attempt has been made by the alleged contemnor respondent nos.1 and 2 to create evidence and the time of receipt of the 5 sets of service effected on the respondent nos.1, 2 and 5, find mention. Surprisingly it has been noted in the despatch register that all 5, have received copies in the office of the respondent no.1 although they were addressed as per the address given in the cause title.
(3.) In the letter dated 19th September, 2014 the order dated 26th July, 2013 was received on 30th July, 2013 and has been mentioned in the affidavits filed and in replying to the said letter no specific date was mentioned of receipt and all that was said is that the transactions took place prior to receipt of the order dated 26th July, 2013 on 31st July, 2013. Even on the returnable date, i.e., 2nd August, 2013 there is no mention of issuance of cheque through RTGS instruction on 31st July, 2013. Inspite of the order being passed in terms of prayer (d) and the phrase "dealing with" signifies that no cheque could be issued nor instruction given. As it has been admitted in paragraph 13 of the affidavit filed by the alleged contemnor respondent no.1 that 3 lakhs was transferred on 30th July, 2013 and before the order was served on the Institute, a sum of Rs.1 crore had been transferred by RTGS but this in view of the affidavit of service filed by Mr. Chittaranjan Chakraborty on 31st July, 2013 cannot be accepted and admittedly as monies had been transferred, after the passing of the order dated 26th July, 2013 by the respondent having full knowledge of the said order, there has been wilful and deliberate violation of the said order.;