G. M. LODHA, J. - (1.) M/s. Delhi Cloth and General Mills Company Ltd. , Delhi and Another have filed this application dated 7-7-79 under section 148 and 151 C. P. C. for revising the stay order of this Court dated 17-4-79, in view of the order of the Hon'ble Supreme Court passed while rejecting the Special Leave petition on 21-6-79.
(2.) HON'ble Mr. Justice R. S. Pathak, Vacation Judge of the Supreme Court in Special Leave petition No. 5153/79 gave the following order: "the Special Leave Petition is rejected, it is open to the petitioner to apply to the High Court and show that the conditions mentioned in the conditional stay order are too rigorous for compliance and that the circumstances that the petitioner owns assets of sufficient value should be taken into consideration. In case the High Court is disposed to varying the conditional stay order, it will be of course open to it, to extend the time for compliance with the fresh order which it makes now. " In order to show that the conditional stay order passed by this Court earlier is too rigorous for compliance and the circumstance that the petitioner owns assets of sufficient value should be taken into consideration, the petitioner has made the following relevant averments in the petition: "2. That on receipt of this order the petitioner has been trying to obtain Bank Guarantee for Rs. one Crore and a person who can stand surety for the balance amount viz;, Rs. 4,57,08,761-61. The petitioners are finding difficulty in complying with these two conditions of the order. 3. That the petitioner has already given Bank Guarantee to the extent of Rs. 3. 59 Crores in pursuance of the order passed by the Hon'ble Justice C. M. Lodha on 10-5-76 in Civil Writ No. 628 of 1976 for payment subsequent to the passing of the Electricity (Supply) (Rajasthan) (Amendment) Ordinance, 1976 now an Act and has to give fresh Bank Guarantee for about 13 lakhs every month. 4. That the petitioner-Company's Unit at Kota employs about 1500 employees. 5. That if electric connection is disconnected in pursuance of the order passed by this Court so many persons will be unemployed and the Company will also suffer heavy losses. Further the unemployment of such large number of persons will create law and order situation in Kota area which is already tense. 6. That the Company produce basic Chemicals viz. Caustic Soda, Calcium Carbide, Poly Vinyl Chloride which are in great demand in the market and non-production of the said materials by the Company will create shortage in the market and other consequent products will also suffer. 7. That unencumbered assets of Shri Ram Chemical Unit at Kota are to the tune of Rs. 22. 89 Crores. The total assets of the Company Messrs; Delhi Cloth & General Mills are much more than the figures stated above. 8. That the Company is prepared to give an undertaking in whatever terms the Court may order that it will not transfer its fixed assets to the tune of Rs. 4,57,08,761. 61. 14. That both cases are likely to be decided in the month of August and Company's amount are not going to be deposited in any way so as to make difficult for the R. S. E. B. , to recover the amount. 15. That in view of the facts stated above it is desirable that the order should be modified and time extended. 16. That in view of the aforesaid facts and circumstances it is prayed that this Hon'ble Court may be pleased to modify the aforesaid conditions and extend the time for complying with the order dated 17-4-1979. " This application is accompanied by affidevit of Shri S. S. Bhargava, Administrative Manager of the Company Unit known as Shriram Chemical Industries at Kota. Respondent No. 1 has filed reply to the above application on 10-7-79. In the reply, the respondent vehemently contested the application for modification for the earlier stay order and submitted that the petitioner wants the case to be heard before complying with the Court's order so that in case the petition is decided against him, no compliance of the order would be necessary. The relevant averments in the reply are as under: - "3. That the petitioner is not producing, despite demand made in open court, the balance-sheet and profit and loss account of the Company since 1966, which would reveal that the Company had made a provision. It is submitted that withholding of these balance-sheets, despite demand, should be construed adversely and this Hon'ble Court should be pleased to draw an adverse inference against the petitioner that if the profit and loss account and the balance sheets of the company since 1966 were produced, they would reveal that there was a provision in them for making payment of the dues. 4. That the petitioner had all along been theatening that the labour will go out of employment if the factory is closed. This does not give the petitioner a license to draw electricity without paying proper charges. It is submitted that the petitioner must pay for the bills according to the rates of the tariff as all other industries are paying. 5. That if the assets of the petitioner is more than 23 Crores, it should not be difficult for him to furnish the Bank Guarantee for a crore of rupees and find out a solvent surety for about 5 crores of rupees. In fact the petitioner has not made any effort in that direction and has not given in his affidavit as to what effort he has made in this direction. The only effort of the petitioner is to have the case decided before furnishing the Bank guarantee, surety and the undertaking so as to leave the Board in difficulty is dismissed. On the other hand, the Board desires, and rightly so, that before the petition is heard the Bank Guarantee, surety and undertaking are given, so that soon after the petition is dismissed, the Board may have no difficulty in realising the dues which can be done by operating the Bank Guarantee and by trapping the persons who stand as sureties. 7. That the petitioner is already with holding a huge amount from paying it to the Board and which would have been utilised by the Board for extension purposes. This Hon'ble Court had already been lenient to the petitioner in not asking it to pay at least half of the dues and secure the rest by Bank guarantee, as is normally expected. Instead of the normal order generally made by this Hon'ble Court, this Hon'ble Court only ordered the petitioner to give Bank guarantee for only a crore of rupees and furnish surety for the rest of the amount. The petitioner has not given any explanation for not-complying with the Court's order in sub-paras (b) and (c) of para 1 of his application. The petitioner has not come with clean hands and this application is moved with the sole purpose of getting the case decided before complying with the Court's order, so that the Board may not be able to realised its dues from the petitioner. "
(3.) IN affidavit of re-joinder shri S. S. Bhargava, Administrative Manager of the petitioner-Company at Kota controverted the allegations of the Electricity Board and asserted that the Company is willing to give undertaking for payment of principle amount with interest @ 9% and also to the publication of the liability in annual reports. It was also asserted that the Company negotiated with the Punjab National Bank and Bank of Rajasthan Ltd. . for the Bank Guarantee of Rs. One Crore but the negotiations have not resulted in anything concrete so far. For solvent surety, the Company explored the possibility of persuading other Joint Stock Companies of the same group. The discussions took place and legal opinion sought, but advice received was that it was not desirable. The company is willing to give surety in the form of a undertaking. Alongwith this affidavit dated 10-7-79, a draft of undertaking was also produced which reads as under: - "draft: The Delhi Cloth & General Mills Company Ltd. , having its registered office at Bara Hindu Rao Delhi, solemnly states to this Hon'ble Court that it has un-encumbered fixed assets of the value of more than Rs 22 Crores in its Kota Unit known as Shriram Chemical INdustries. The Company hereby gives an undertaking to this Hon'ble Court that out of the aforesaid assests the Company shall not part with possession of or alienate or encumber the assets of the value of Rs. Six Crores till the final disposal of the writ petition herein. Signed this day of July, 1979 at Jaipur. SIGNATURE OF THE PETITIONER THROUGH ITS COUNSEL. " The arguments were heard and the case was adjourned earlier on 10th and 11th July, 1979 as a joint request was made that further time may be given to consider the matter and to submit complete arguments. On 21-7-79 the arguments were then completed and during the course of arguments, Mr. Mridul submitted a draft of written undertaking which reads as under : - "mr. Mridul on behalf of the petitioner states that his clients are willing to give the following undertaking to the Court : "the Delhi Cloth & General Mills Company Ltd. , having its registered office at Bara Hindu Rao, Delhi, solemnly states to this Hon'ble Court that it has un-encumbered fixed assets of the value of more than Rs. 22 Crores in its Kota Unit known as Shri Ram Chemical Industries. The Company hereby gives an undertaking to this Hon'ble Court that out of the aforesaid assets the Company shall not part with possession of or alienate or encumber the assets of the value of Rs. 5 Crores till the final disposal of the writ petition herein. Mr. Mridul further states that his clients have no objection that while accepting the aforesaid undertaking this Hon'ble Court may in its order provide that in view of the said undertaking a floating charge to the extent of Rs. 5 Crores is created in favour of the respondent Electricity Board to secure the repayment of the dues of the said Board. Mr. Mridul further states that his clients have no objection and are willing to give a further undertaking to this Hon'ble Court in the following words : - "the Delhi Cloth and General Mills Co. Ltd. , gives an undertaking to this Hon'ble Court that if the claim of the respondent Board under their bill for Rs. 5,57,10,659. 69 is ultimately upheld in the present writ petition's proceedings or is otherwise established by due process of law then the petitioners would have no objection and give an undertaking to this Hon'ble Court to the effect that the respondent Board would be entitled to recover the amount of the bill to the extent affirmed or established as aforesaid by enforcing the aforesaid charge as if this order made by this Hon'ble Court were an executable order for payment and enforcement of the charge. " Mr. H. P. Gupta learned counsel for the Board objected to above submission of this undertakings in the form of the draft at this stage without there being any order of the court for the same, and also termed it as against professional ethics. This generated avoidable heat in the arguments and Mr. Mridul took serious exception to teaching of ethics to him. The principle arguments were diverted from merits of the case to the professional ethics of advocates both senior advocates accusing each other which created very unpleasant situation. It was with great difficulty that I could persuade them to avoid display of tampers and argue the merits only. It would have been better, if both the learned counsel would have avoided such unpleasant altercations and concentrated on the merits of the matter by having a detached and objective approach, as is expected from the learned members of the Bar. ;