Commentary on Delhi High Court Judgment dated 16 March 2023 in Parnita Kapoor versus Arvind Malik under the Contempt of Courts Act

Should a man be convicted for contempt of court and sent to prison for six months for failing to pay money in compliance with a Court order? 

In a Judgment dated 16 March 2023, Justice Mamneet Pritam Singh Arora of the High Court of Delhi has sent a lawyer to prison for six months for failing to comply with Court directions to pay rent arrears in a tenancy dispute. 

Read the Judgment at https://images.assettype.com/barandbench/2023-03/a9f127b5-f312-46c7-831f-63969b22b591/Parnita_Kapoor_v_Arvind_Malik.pdf 

Even though it appears that the lawyer had defaulted in complying with Court directions to pay rent arrears, the larger question arises as to whether a party should be sentenced to prison for six months under the Contempt of Courts Act for failing to pay moneys owed. What purpose will such an order of imprisonment serve in securing the payments due? Should a man be imprisoned for such default or would the better course have been to take steps for recovery of the moneys due under Civil Law including as arrears of land revenue. 

Other concerns that the Judgment gives rise to -

In sending the Party to Prison for six months, the Court has ignored the mandate if Section 12(3) of the Contempt of Courts Act which states: "Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.". The Law itself provides that a sentence of imprisonment for a civil contempt is extraordinary and requires special reasons, and even then the detention must be in a civil prison. 

The Judgment orders the immediate imprisonment of the lawyer without providing an opportunity to appeal the ruling before the lawyer is taken into custody. Normally and properly, such judgments should state that the sentence will stand suspended for a period of three months to enable a statutory appeal under the Contempt of Courts Act. A statutory appeal is an appeal by right. Every Court order can in theory be legally flawed hence the right of appeal is a valuable and indispensable right. The judgment ignores this right of appeal. Further once incarcerated, the lawyer will certainly not be able to exercise his remedies including his right of appeal as effectively as he would be able to do otherwise. 

The Judgment fails to adequately record the defence if any of the Party. There is some passing reference to the Party's claim of financial inability to pay and to the Party's position that the orders determining the amounts due were wrong and that the amounts determined as due are incorrect, and that the Party was not adequately represented by Counsel when these orders were passed. The Judgment adopts a technical position that the previous orders were not appealed against. But in my view, before sending a man to prison for six months, the Court ought to have considered these defences in detail and should have attempted to arrive at the truth of these defences. 

In the Judgment, the Court also refers to a statement in an earlier order that the lawyer was carrying on the business of paying guest accommodation in the rented premises in contravention of the prohibition in the Advocates Act. The Judgment directs the Bar Council to take action against the lawyer and to file a report within four weeks on the action initiated, Once again, this direction in the judgment coupled with the immediate imprisonment of the Party causes grave prejudice because it directs punitive action against the Party, while simultaneously preventing the Party from availing his legal remedies by directing his immediate imprisonment. The overall impression one should get from a Court Judgment is one of justice and fair play. And this Judgment fails to convey that and instead leaves one with a sense of unease. 

One glaring fact that stands out and which the Court makes no mention of is that the main story played out during the Covid pandemic and lockdowns. The Covid lockdowns obviously affected the Paying Guest business and the ability of the Party to pay rent. Yet the Court does not take this into consideration. 

In paragraph 24 the Court sets out its reasoning for sentencing the Party to imprisonment for six months. It states "This Court is of the opinion that if the Respondent is not met with the consequences of the wilful default and breach on the orders and undertakings given to this Court, it will embolden him to similarly abuse the process of law in future and victimize fellow citizens on the belief that the sanctity of orders passed by the Court need not be protected and honored. This is a fit case where any leniency shown by the Court will be misunderstood as weakness."

With great respect, the reasoning of the Court in paragraph 24 is flawed. The Court simply assumes that the Party will abuse and victimise others in the future and states that the Court cannot be considered as weak. Once again, the Court fails to determine the real reasons for failure to pay and also fails to appreciate that the objective is not to punish the Party or to assert the strength of the Court but to arrive at a fair and just decision and to use the law to facilitate the payment of dues to the extent possible. 

Paragraph 29 of the Judgment reads as follows: 

"It is further directed that if in future, the Respondent herein similarly fails to comply with orders of the Court in any legal proceedings where he is a party, the record of the present contempt petition shall be read in evidence and the subsequent conduct will be considered as an aggravated contempt of the Court within the meaning of Section 2(c) of the Contempt of Courts Act, 1971. It is directed that the Respondent herein will be under an obligation to disclose this order to the Court in which any subsequent contempt proceedings is filed against him."

The observations and directions in Paragraph 29 of the Judgment are baffling. Section 2 (c) of the Contempt of Courts Act does not talk of aggravated contempt.  That provision defines criminal contempt which is an entirely different offence from the civil contempt which was in issue in the instant case. The observations in paragraph 29 also violate Article 20 of the Constitution of India and the fundamental right against double jeopardy as codified in that Article which interalia guarantees that "No person shall be prosecuted and punished for the same offence more than once". This tendency to brand the Contemnor forever that is often found in Contempt of Court decisions is incorrect as judged on the anvil of law, justice and fair play.

Overall the judgment of the Delhi High Court dated March 16, 2023 in Parnita Kapoor versus Arvind Malik does not read like a fair, just and objective resolution of the dispute and creates a sense of unease with the manner in which the contempt power of the Court itself causes grave prejudice to a Party. 

The question of imprisonment for a civil debt itself raises questions of fundamental rights and human rights. The global trend is against imprisonment for failure to pay a civil debt. In its decision in Ramasamy vs Pushpa, the Madras High Court on 13 March, 2017 considered these issues and clarified that "Now, it is firmly settled that even in an execution petition under Order XXI Rule 37 C.P.C., simply because the decree holder wishes that the judgment debtor should be made to count the bars of a Civil prison on account of his inability to pay the decree debt, the Court could not send the debtor to jail unless he has current ability to clear off the debt or he has malafide refusal or he has some other vice or mens rea apart from his failure to foot the decree."

The decision of the Delhi High Court in Parnita Kapoor has sent a man to prison for six months simply for failure to pay a civil debt. The Court made no inquiry into the means of the Party, into his current ability to pay the debt, and into the reasons for his failure to pay the debt. The Court simply assumed wilful default and sent the Party to prison for six months. 

The decision of the Delhi High Court in Parnita Kapoor is against the spirit of Article 11of the International Covenant for Civil and Political Rights which states that - No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. The Delhi High Court in Parnita Kapoor also failed to carry out the balancing mandated by the Supreme Court of India in its decision in Jolly George Verghese & Anr vs The Bank Of Cochin on 4 February, 1980 {1980 AIR 470, 1980 SCR (2) 913{ between the provisions providing for imprisonment for failure to pay a civil debt and Article 11 of the International Covenant on Civil and Political Rights read with Article 21 of the Constitution of India.