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COURT ON ITS OWN MOTION vs RAJESH GIROTHIYA AND ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:- 8th August, 2024
+ CONT.CAS.(CRL) 4/2024
COURT ON ITS OWN MOTION …..Petitioner
Through:

versus

RAJESH GIROTHIYA AND ORS. …..Respondents
Through: Mr. Kirti Uppal, Sr. Adv. with Mr. Harsh Ahuja, Mr. Rishabh Saxena & Mr. Akashdeep Gupta, Advs. for R-1 to 3.
Mr. Mohit Mathur, Sr. Adv. with Mr. Sandeep Sharma, Mr. Amit Chadha, Mr. Kushal Kumar, Ms. Brinda Kaur Grover, Mr. Harsh Gautam & Mr. Harjas Singh, Advs. for R-4.
Mr. Mohit Sharma, Mr. Ankur Tiwari, & Mr. Iran Krishna, Advs. for Plaintiff in Suit.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA

Prathiba M. Singh, J. (ORAL)
1. This hearing has been done through hybrid mode.
2. The present is a suo moto contempt reference on the basis of a letter dated 9th April, 2024 by the Principal District & Sessions Judge, North-West District, Rohini Courts, Delhi.
3. A brief background of the case is that a commercial suit being, CS(COMM.) No. 777/2023 was filed by one Shri Shyam Lal Sharma, sole proprietor of Madhuram Sweets, Indore, alleging violation of rights in the registered trademarks and rights in the mark name ‘Madhuram’. The said suit was listed on 2nd November, 2023 before the Commercial Court, North West District, Rohini. Vide order dated 2nd November, 2023, in the said suit. the Court had granted injunction in the following terms:-
“19. For the forgoing reasons and till further orders, the defendant by itself/themselves as also through his/their individual proprietors/partners/directors, agents, representatives franchisee, employees, assigns, heirs, successors, and ail others acting for and on their behalf are restrained from using, selling, soliciting, exporting, displaying, advertising, promoting (including in audio, print, visual/social media or otherwise), directly or indirectly or dealing in any other manner or mode in the impugned Trademark/Trade name “MADHURAM SANDWICH” or any other Trademark/label/Trade name which is/ or may be identical with and/or deceptively similar to the plaintiff s Trademark/label/trade name “”MADHURAM’/, ,& ” in relation to their impugned goods/services and business of providing and selling of food. Drinks, Snacks, Sandwiches & other confectionery products or from doing any other acts or deeds amounting to or likely to passing off their goods/services and business as that of the plaintiff, thereby diluting the plaintiffs goodwill and reputation; and infringing the domain name of the plaintiff viz. www.madhuramsweets.com.”

4. Vide the same order dated 2nd November, 2023, the Court also appointed a local commissioner to visit the premises of the Defendant at 2, Hukum Chand Marg, Opposite Kanch Mandir, Itwaria Bazar, Indore, Madhya Pradesh. The mandate of the local commissioner is contained in paragraph 22 of the said order.
5. The local commissioner executed the commission on 8th November, 2023. On the said date, the local commissioner first obtained police assistance and then visited the premises of the Defendant. The certified copy of the order dated 2nd November, 2023 was provided to them. The local commissioner found use of the name ‘Madhuram’ at the premises and recorded the same in the report. However, thereafter the local commissioner records as under: –
“8. That after waiting for some time, an Advocate appeared out of nowhere and started arguing offensively in favour of the Defendant. He further advised the Defendant not to believe in the Hon’ble Court’s order as the same was not signed by the Ld. District Judge. The undersigned along with the Counsels of the Plaintiff Company tried to convince the Advocate and the Defendant that the same was a certified copy of the Hon’ble Court’s order bearing original stamp and initials of the Ld. District Judge but they were adamant to stop the commission as per the directions of this Hon’ble Court’s Order.
9. That upon confrontation the purported lawyer disclosed his identity as Pavitra Dubey, Advocate 5128/2016 of Uttar Pradesh. It is imperative to note that the said advocate and the defendant took the ID card of the undersigned ID Card of the undersigned issues by the Delhi High Court Bar Association and flashed the same in general public stating that “This id card is not original and questioned the Authority of the undersigned to proceed with commission as per the directions of this Hon’ble Court vide order dated 02.11.2023″. It is imperative to note here that even alter explaining the purpose of the visit, the contents of the order dated 02.11.2023 and the powers of inspection, search and seizure granted to the undersigned by the order of this Hon’ble Court, the Defendant and the Advocate both refused to accept the order dated 02.11.2023.
10. That the said advocate of the Defendant even went to the extent that he even refused to talk to the DCP or the reader of the Ld. District Judge and said that he will not only believe this order unless the Ld. District Judge himself signs the same and give it directly to the Defendant.
11. Thereafter, the said Advocate along with the Defendant started shouting loudly upon the undersigned and the accompanying advocates of the Petitioner company and even threatened the undersigned that actions should be taken against the undersigned for raiding the premises of the Defendant without any order or authority.
12. At this stage, the undersigned again asked the Defendant Mr. Rajesh Girothiya, Prop, of Madhuram Sandwich, that will he allow the undersigned to continue to proceed with the inspection of the premises as per the directions in the order of this Hon’ble Court dated 02.11.2023, to which, he blatantly refused and tried to make a law and order situation.
Xxx xxxx xxx
14. That the said advocate along with the Defendant and a bunch of local goons started raising slogans in the middle of the Road. It is pertinent to mention here that during the said proceedings, one Mr. Ravi Katariya, who claimed to be a member of the Shop Keeper Association” of the said premises, also tried to influence the proceedings by saying “if we proceed with the commission, they will call for “BAZAR BAND” and “CHAKKA JAM” of the area.
15.lt is also imperative to note that during the said proceedings, the Defendant also called some political leaders and a bunch of advocates and other local authorities to whom, the undersigned explained and perused with the order and directions of this Hon’ble Court and to which they all were convinced.
16. That before leaving the premises, the undersigned, for the third and last time asked the Defendant that whether he would allow us to proceed with the directions of the Hon’ble Court’s order or will the oppose the said order in the “Contempt of Court”, but the Defendant following the advice of the said advocate again refused to proceed further
17. It is also imperative to mention here that the said advocate publically stated that “Do you know Hon’ble xxxxxxxxxxxxxxxxx now a practicing Senior Advocate at the Punjab & Haryana high Court, and I am (the said Advocate) Pavitra Dubey, a Junior of Hon’ble Justice, and you can ask the Hon’ble Justice about his identity, and even suggested the undersigned to consult the Hon’ble Justice about the authority of the certified order.
20. That around 3:30 pm, the undersigned alongwith the Plaintiff Advocate reached the Police Station, Malharganj and gave a written complaint of the Contempt of Court order. It is also pertinent to mention here that the Defendant alsorefused to receive the copy of the Hon’ble Court’s order and the Plaint and even refused to sign any document. Copy of the written complaint is annexed hereto and marked as ANNEXURE-3’.

6. The above report was then placed before the Commercial Court which vide order dated 8th April, 2024 observed as under:-
“21. (i) This is a serious matter. Before proceeding further, it would be appropriate to refer to the position of law laid down by Hon’ble High Court of Delhi in this regard. In case reported as, “CCP No.49/2011 in CS (OS) No.947/2011”, titled as. “Autodesk Inc. &Anr. V/s Arup Das &Ors.” (DOD: 22.10.2023), the Hon’ble Court has been pleased to lay down as under:
xxxxxxxxx
26. A Local Commissioner appointed by the Court is an extended arm and agent of the Court. The Local Commissioner is appointed by. the Court because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site. Therefore, a Local Commissioner is appointed to act as the eyes and ears of the Court so that local investigation could be carried out for the purpose of elucidating the matters in dispute. In matters involving allegations of infringement of intellectual property rights, the execution of the local commission and the report furnished by the Local Commissioner assumes great significance, as the breach of copyright in softwareswhich resides in electronic form, may go undetected unless computer systems of the defendant are examined and investigated before the defendant gets a chance to destroy the evidence of use of such software by deleting the software from the computer system.
xxxxxxxxxx
28. “Civil Contempt” is defined in Section 2(b) of the Contempt of Courts Act, 1971 to mean “willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court”. The respondents have willfully disobeyed the orders of this Court by not permitting the Local Commissioner to execute her Commission at the address in question. The present is not a case where the Local Commissioner desired to carry out the Commission/investigation at a wholly unrelated premises. Firstly, the premises itself was named in the order of the Court, authorizing the Local Commissioner to inspect the same. Secondly, the premises was the premises of the defendant company, inasmuch, as it was their Corporate Office and the Design and Development Centre for the check valves, butterfly valves and balancing valves manufactured by the defendant company – as is evidenced from the ISO certificate. The refusal of the respondents to allow the execution of the Local Commission is clearly deliberate, willful and mala fide.
xxxxx
(ii) Further, in case reported as, “CCP(O) 10/2018 in CS (Comm.) No.291/2018”, titled as, “Louis Vuitton Malletier V/s Mr.Omi&Anr.” (DOD: 07.08.2018), the Hon’ble Court has been pleased to hold as under:
xxx xxxxxx
A LOCAL COMMISSIONER APPOINTED BY THE COURT IS EFFECTIVELY THE EYES AND EARS OF THE COURT AND THE REPORT IS PART OF THE COURT RECORD. THE DEFENCE THAT A LOCAL COMMISSIONER’S REPORT IS NOT MENTIONED IN ANY REPORTED JUDGMENT, AS THE BASIS OF CONTEMPT IN THE FACE OF THE COURT IS AN UNTENABLE ARGUMENT AS THE INSTANCES OF CONTEMPT MENTIONED IN THE JUDGMENTS, ARE NOT EXHAUSTIVE BUT ILLUSTRATIVE.
19. A Local Commissioner is a person appointed by the Court in pursuance of its powers vested under Order XXVI of the Code of Civil Procedure and is normally authorised to examine witnesses, conduct local and scientific investigations and/or sale of property, perform a ministerial act, examine accounts, partition of property and execute any other order as directed by the Court.
20. While conducting an investigation, a Local Commissioner is given wide powers as he is in effect a ground level representative of the judiciary. This view was favoured by the Andhra Pradesh High Court in Sri Mahant Narayana DossjeeVaru vs. The Board of Trustees, the Tirumalai Tirupati Devasthanamas, Tirupathi, 1957 SCC OnLine AP 116. The Madras High Court in PormusamyPandaram v. The Salem VaiyapamaiaiJangamar Sangam, 1984 SCC OnLine Mad 190 has held as under
“5 Its object is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in court but could be taken only from its peculiar nature, on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner, in effect, is a projection of the court, appointed for a particular purpose ”
21. The Supreme Court in MisrilalRamratan&Ors. Mansukhlal&Os. V.A.S. Shaik Fathimal (Dead) by LRs. &Ors. 1995 Supp.(4) SCC 600 has held that even a specious plea of non-examination of a Local Commissioner at the stage of trial cannot lead to the Commissioner’s report being overlooked or rejected by the Court. The above view of the Supreme Court was also relied upon by the Delhi High Court in Levi Strauss and Co. v. Rajesh Agarwal, 2018 see OnLine Del 6421, wherein it has been held as under “9. The Local Commissioner is in fact a representative of the Court itself and it is for this reason that Order 26 Rule 10(2) ofCPC clearly provides that once the Commissioner has filed the evidence along with his report the same shall be treated as evidence in the suit and shall form part of the record. ”
22. In the opinion of this Court, a Local Commissioner appointed by the Court is an extended arm and agent of the Court. The Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site. [See: Autodesk Inc. & Am. v. Arup Das &Ors, 2013 see OnLine Del 4225 and Anil K. Aggarwal V. Union of India, 2014 SCC OnLine Del 2292].
23. Consequently, the Local Commissioner is effectively the .eyes and ears of the Court. Moreover, as the reports of the two Local Commissioners have now been admitted, the facts therein must be taken to be true and correct.
24. The contemnors’ only defence that a Local Commissioner’s report is not mentioned in any reported judgment, as an instance of contempt in the face of the Court, is an untenable argument as the instances of contempt mentioned in the judgments are not exhaustive but illustrative.
25. Accordingly, this Court holds that the reports of the Local Commissioner form a part of the Court record and what is recorded therein, especially as it has not been disputed, shall be deemed to have been recorded/seen by this Court and the said reports conform the basis of an action under Section 14 of the Act 1971. 26. In fact, in the present case, the statements made by respondent no. 2/ defendant no. 2 under oath, contrary to the two Local Commissioners’ reports, prejudice and/or interfere and/or tend to interfere with, the due course of the judicial proceeding and/or obstruct and/or tends to obstruct, the administration of justice.
THE PRESENT CASE IS A CASE OF CONTEMPT IN THE FACE OF THE COURT AND THEREFORE, THE PROCEDURE UNDER SECTION 14 OF ACT, 1971 APPLIES FOR ALL OTHER CASES OF CRIMINAL CONTEMPT SECTION 15 IS APPLICABLE.
27. Criminal Contempt is defined under Section 2(c) of the Act, 1971. Section 14 deals with contempt in the face of the Court. Under the said section, the Judge in whose face the contempt is committed can himself/herself forthwith take notice and issue orders of contempt against the contemnor. Lord Denning has held “contempt in the face of the Court was never confined to conduct which a judge saw with his own eyes. It covered all contempts for which a judge of his own motion could punish a man on the spot. So contempt in the face of the court is the same thing as contempt which the court can punish of its own motion. It really means contempt in the cognisance of the court.” [73 Balogh vs. St Albans Crown Court (supra)].
28. Contempt in the face of the Court may be criminal or civil contempt. However, in both cases of contempt in the face of the Court, the procedure under Section 14 of the Act, 1971 is attracted. For all other cases of criminal contempt Section 15 is applicable.
29. Further, this Court is of the opinion that a contemnor is not in a position of an accused and contempt proceedings are separate and distinct from criminal proceedings. In a criminal trial where a person is accused of an offence, there is a Public Prosecutor who prosecutes the case on behalf of the prosecution against the accused, but in contempt proceedings the Court is both the accuser as well as the Judge of the accusation as observed by the Supreme Court in DebarataBandopadhyay Vs. State of West Bengal, AIR 1969 SC189. In fact, contempt proceeding is sui generis. It has peculiar features which are not found in criminal proceedings. In this view the contemnors do not stand in the position of a person accused of an offence and the Court is free to evolve its own procedure consistent with principles of fair play and natural justice. The Supreme Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat &Ors., (1991) 4 see 406 has held so. The relevant portion of the said judgment is reproduced hereinbelow:-
” 12 A criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distinguishes it from ordinary offence. An offence under the criminal jurisdiction is trial by a Magistrate or a Judge and the procedure of trial is regulated by the Code of Criminal Procedure, 1973 which provides an elaborate procedure for framing of charges, recording of evidence, cross-examination, argument and the judgment. But charge of contempt is tried on summary process without any fixed procedure as the court is free to evolve its own procedure consistent with fair play and natural justice. In contempt proceedings unlike the trial for a criminal offence no oral evidence is ordinarily recorded and the usual practice is to give evidence by affidavits…..:
” 30. A Division Bench of the Allahabad High Court in State of U.R Vs. Deg Raj Singh &Ors., 1983 CrlLJ 866 has similarly held as under:-
” 27. A contempt is not an offence within the meaning of Section 5(2) of the Code of Criminal Procedure nor is the contemnor an accused within the meaning of Section 5 of the Oath’s Act, or within the meaning of Article 20, Sub-Clause (3) of the Constitution of India. Contempt is an offence to the Court and not to the person who sits as a Judge. Ergo, an insult to the Court if not punished will create a general dissatisfaction in the minds of the public as to the dignity, solemnity and efficacy of the Courts of Justice. Xxxxx”

7. The Court then came to a prima facie conclusion that Mr. Rajesh Girothiya and Mr. Pavitra Dubey, Advocate have committed criminal contempt and sent a reference to this Court:-
“24. (i) If the law laid down in the aforesaid judgments is applied to the facts of case in hand, then a reference in the matter is liable to be made to Hon’ble High Court of Delhi under Section 10, 11 and 12 of The Contempt of Courts Act, 1971, as the action of the alleged contemnors (as detailed out in the report of learned Local Commissioner dated 17.11.2023) amounts to undermining the authority of the Court.
(ii) Accordingly, separately a reference U/s 10 of Contempt of Courts Act, 1971 against the alleged contemnors have been made to Hon’ble High Court of
Delhi for taking appropriate action against the alleged contemnors.”

8. The contempt reference which was made was received in April, 2024 and vide order dated 1st May, 2024, directions were issued to the contemnors to file their reply. The contemnor, Mr. Pavitra Dubey, Adv and Mr. Rajesh Girothiya have thereafter appeared from time to time before this Court and have also filed their respective affidavits.
9. In the affidavit of Mr. Pavitra Dubey dated 15th July, 2024 he has tendered an unconditional apology in paragraph 4. However, later on in the affidavit, he has challenged the report of the local commissioner by stating that the facts recorded by the local commissioner are incorrect. The relevant portion of the affidavit of Mr. Pavitra Dubey is extracted hereinunder:-
“4. That the Deponent seeks to tender an unconditional apology before this Hon’ble Court for the non-compliance of the aforementioned Order dated 02.11.2023 passed by the Ld. Trial Court and unintentionally creating obstruction in the execution of the commission issued by the Ld. Trial Court.
6. Thatitis respectfully submitted that there are factually incorrect averments in the Report dated 17.11.2023 of the Local Commissioner. It is submitted that the Local Commissioner or the counsel for the Plaintiff never produced the certified copy of the order of the Ld. Trial Court and the said copy of the order only bore the initials of the Ld. Presiding Officer. The Deponent never questioned the authority of the Ld. Trial Court but merely questioned the authenticity of the copy of the order produced by the Local Commissioner, which was merely a photocopy. Further, the Deputy Commissioner of Police was not present at the site and one lawyer, purporting to be the counsel for the Plaintiff, told the Deponent to speak to a person on the phone who the said lawyer claimed to be the Deputy Commissioner of Police.”

10. In the affidavit of the second contemnor Mr. Vaibhav Girothiya dated 15th July, 2024 an unconditional apology was again tendered in paragraph 4 and thereafter however allegations were made against the Plaintiff in paragraph 7. There is a clear admission in the affidavit of Mr. Vaibhav Girothiya that there has been non-compliance of the order dated 2nd November, 2023. The relevant paragraphs of the said affidavit are set out below:-
“4. That the Deponent seeks to tender an unconditional apology to the Ld. Trial Court and this Hon’ble Court for the non-compliance of the aforementioned Order dated 02.11.2023 passed by the Ld. Trial Court and non-deliberately creating obstruction in the execution of the commission issued by the Ld. Trial Court.
xxx xxx
7.That owing to the non-cooperation from the Local Commissioner and the Plaintiff, some confusion arose which led to the non-deliberate non-compliance of the Order dated 02.11.2023 passed by the Ld. Trial Court, thereby leading to non-deliberate obstruction in the execution of the commission issued by the Ld. Trial Court.”

11. On the last date of hearing i.e. 16th July, 2024, the Court was shown certain video clips wherein the contemptuous conduct of Mr. Pavitra Dubey, Advocate became clearly evident.
12. Subsequently the said contemnors have filed modified affidavits where apology has again been tendered. The relevant portions of the affidavit of Mr. Pavitra Dubey dated 5th August, 2024 is extracted hereinunder for a ready reference:
“4. That the Deponent seeks to tender an unconditional apology before this Hon’ble Court for the non-compliance of the aforementioned Order dated 02.11.2023 passed by the Ld. Trial Court and unintentionally creating obstruction in the execution of the commission issued by the Ld. Trial Court.

5.That it has been stated in the Report dated 17.11.2023 of the Local Commissioner that the Deponent argued offensively with the Local Commissioner and advised the Defendant Mr. Rajesh Girothiya not to believe in the Hon’ble Court’s order as the same was not signed by the Ld. District Judge. It has been further stated that the Local Commissioner had produced the certified copy of the order of Ld. Trial Court bearing stamp and initials of the Ld. District Judge but the Deponent and other contemnors
were adamant to stop the commission. It has also been stated that the Deponent even refused to talk to the Deputy Commissioner of Police or the reader of the Ld. District Judge.

6. That the main allegations against the Deponent are regarding shouting loudly upon the Local Commissioner and the accompanying advocates. It is submitted that the Deponent did not shout at the Local Commissioner or the accompanying advocates but there were heated arguments between the parties at both side owing to the confusion regarding the copy of the order produced by the Local Commissioner. It is pertinent to mention here that while the Ld. Trial Court had only directed the seizure of the impugned goods, accessories, packaging material, etc., it was misunderstood by the Deponent and other parties present at the spot that the Local Commissioner and the advocates representing the Plaintiff sought to close to the shop of Mr. Rajesh Girothiya, which would have adversely affected the business of Mr. Rajesh Girothiya. The situated turned heated only because of the imminent threat upon the livelihood of shop owner/ operator and misunderstanding on part of the Deponent. It is submitted that the Deponent never threatened anyone present at the site and only warned of a legal action. It is further submitted that no goons were ever present at the site of incident.

7. That the Deponent, being a member of the Bar, has utmost respect for the Hon’ble Courts and would never deliberately act towards disobedience of the directions of the Hon’ble Courts and any disobedience of any directions of this Hon’ble Court was not deliberate/ wilful and arose merely out of genuine ignorance and confusion.

8. That on the day of incidence, the Deponent was visiting the shop namely Madhuram Sandwich at Indore, Madhya Pradesh when the Local Commissioner also arrived at the said shop. The Local Commissioner served the owner/ operator of the shop with an order of the Ld. Trial Court, Rohini, North-West Delhi and directed the owner/operator to comply with the directions contained therein. As confusion arose between the said parties and the owner/ operator of the shop appeared to be shocked and dejected, the Deponent intervened merely with the objectives of lending his legal assistance.

9. That as mentioned above, the Deponent never questioned the authority of the Ld. Trial Court and merely inquired about the authenticity of copy of the Order produced by the Local Commissioner. The Deponent had a misunderstanding about the copy of the Order produced by the Local Commissioner and was not able to understand the nature of the copy of the Order.

10.That the copy of the Order produced by the Local Commissioner was bearing the initials of the Ld. Presiding Officer of the Ld. Trial Court and therefore, the Deponent failed to understand and comprehend the same, due to which some confusion arose which led to the unintentional non-compliance of the Order of the Ld. TrialCourt.

11. That the Deponent, merely wanted to protect the legal interests of the owner/ operator of the shop from the closure and seizure and owing to the misunderstanding and confusion, the Deponent had heated arguments with the Local Commissioner. The Deponent never had any intention to disobey the directions of this Hon’ble Court.

12.That the Deponent tenders his unconditional apology before this Hon’ble Court and undertake not to act in non- compliance of the directions of the Hon’ble Courts in future.”

13. The Court has perused the affidavit of Mr. Vaibhav Girothiya dated 6th August, 2024. The relevant portion of the said affidavit has been extracted hereinunder:
“4.That the Deponent seeks to tender an unconditional apology to the Ld. Trial Court and this Hon’ble Court for the non-compliance of the aforementioned Order dated 02.11.2023 passed by the Ld . Trial Court and non-deliberately creating obstruction in the execution of the commission issued by the Ld. Trial Court. It is submitted that as of date, the said Order dated 02.11.2023 stands complied.

5.That it is respectfully submitted that the Deponent never questioned the authority of the Ld. Trial Court and merely inquired about the authenticity of copy of the Order produced by the Local Commissioner. The Deponent had a misunderstanding about the copy of the Order produced by the Local Commissioner and was not able to understand the nature of the copy of the Order. The Deponent is a layman who has no knowledge of the legal procedure and hence, the Deponent could not comprehend the situation.

6.That the copy of the Order produced by the Local Commissioner was bearing the initials of the Ld. Presiding Officer of the Ld . Trial Court and therefore, the Deponent failed to understand and comprehend the same, due to which some confusion arose which led to the unintentional non-compliance of the Order of the Ld. Trial Court.

7. That the statements made by the Deponent, or any other person associated with the Deponent, which have also been produced by the Local Commissioner before the Ld. Trial Court, nowhere show the Deponent questioning the authority of the Ld .Trial Court.

8. That the Deponent or his associates did not mean any harm upon the Local Commissioner and the Plaintiff and only warned them of a legal action, owing to the misunderstanding regarding their act of raiding the premises of the Deponent.

9. That upon the insistence of the Deponent, Mr. Pavitra Dubey, an advocate who was present at the shop for buying the sandwich, had to intervene in the matter to assist me. Mr. Pavitra Dubey has been the regular customer of the Deponent’s shop.

10. That the events in question occurred spontaneously and the Deponent and his associates, being laymen, could not understand and perceive the situation correctly.”

14. The Courts have time and again emphasised that a local commissioner is an officer of the Court who is in effect a ground level representative of the judiciary. A local commissioner is given wide powers to act as an extended arm and agent of the Court. In Autodesk INC & Anr. v. Arup Das & Ors. [(2013) SCC OnLine Del 4225] the Court while refusing to accept the apology of the contemnors therein for obstructing the execution of the local commission by the local commissioner held that a local commissioner is appointed to act as the eyes and ears of the Court so that a local investigation can be carried out for the purpose of elucidating the matters in dispute. The Court in this case observed that in matters involving allegations of infringement of intellectual property rights, as in the present case, the execution of the local commission and the report furnished by the Local Commissioner assumes great significance. The relevant portion of the said judgment is extracted hereinunder:
“26. A Local Commissioner appointed by the Court is an extended arm and agent of the Court. The Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site. Therefore, a Local Commissioner is appointed to act as the eyes and ears of the Court so that local investigation could be carried out for the purpose of elucidating the matters in dispute. In matters involving allegations of infringement of intellectual property rights, the execution of the local commission and the report furnished by the Local Commissioner assumes great significance, as the breach of copyright in softwares-which resides in electronic form, may go undetected unless computer systems of the defendant are examined and investigated before the defendant gets a chance to destroy the evidence of use of such software by deleting the software from the computer system.
27. The respondents do not deny that their own ISO certification shows the Corporate Office of the defendant company as 142 A & B, Noida Special Zone, Phase II, Noida-201 305. They claim the same to be a “loose term” used in the certificate. While making such preposterous statements, the respondents conveniently forget that the ISO certificate was issued at the instance of the defendant company and the other constituents of the Advances Valves Group, and it is they who had furnished the information to the certifying agency. The respondents have sought to distance themselves from each of the pieces of evidence referred to by the Local Commissioner in her report, and also referred to before this Court by the petitioners, by claiming that they are not responsible if an incorrect information of the defendant company is reflected on the various websites and records of, inter alia, Noida Special Economic Zone Authority. I find the stand of the respondents to be untruthful. It is not disclosed as to what steps the respondents, the defendant company, or even Advance Valves Global ever took to correct the so-called mistake which allegedly exists in reporting the address of the defendant company as 142 A & B, Noida Special Zone, Phase II, Noida-201 305 at so many sites and places. It is not explained as to how the so-called incorrect information consistently got reflected at so many locations and sites if the same was not provided by the management of the defendant company/Advance Global Group.
28.  “Civil Contempt” is defined in Section 2(b) of the Contempt of Courts Act, 1971 to mean “willful disobedience to any judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to a Court”. The respondents have willfully disobeyed the orders of this Court by not permitting the Local Commissioner to execute her Commission at the address in question. The present is not a case where the Local Commissioner desired to carry out the Commission/investigation at a wholly unrelated premises. Firstly, the premises itself was named in the order of the Court, authorizing the Local Commissioner to inspect the same. Secondly, the premises was the premises of the defendant company, inasmuch, as it was their Corporate Office and the Design and Development Centre for the check valves, butterfly valves and balancing valves manufactured by the defendant company – as is evidenced from the ISO certificate. The refusal of the respondents to allow the execution of the Local Commission is clearly deliberate, willful and mala fide.
29. The respondents have further compounded their disobedient and defiant conduct by exhibiting the audacity to even now not come out truthfully before this Court. The respondents continue to falsely insist, even in the face of overwhelming evidence on record – which includes their own printouts and the ISO certificate, that the address visited by the Local Commissioner, i.e. 142 A & B, Noida Special Economic Zone, Phase II, Noida-201 305, is not the Corporate Office of defendant No. 2, as also the Design and Development Centre for check valves, butterfly valves and balancing valves manufactured at the sites of Advance Valves Pvt. Ltd. at Sites 1 & 2 mentioned in the certificate issued by the Bureau Veritas. Therefore, the respondents are guilty of committing civil contempt in terms of Section 2(b) of the Act. However, the aforesaid conduct cannot be termed as criminal contempt under Section 2(c) of the Act.
30. I may note that only after hearing of the present petition had been concluded, for the first time, the respondents sought to tender their unconditional apology vide their affidavits dated 10.09.2013. The affidavits tendered by the two respondents are identical. The relevant extract from the said affidavits reads as follows:
“2. That in view of the advice given to me, that all hardware and software assets belonged to Advance Valves Global, which was not party to the court proceedings, I did not allow the Learned Local Commissioner and the Plaintiff to conduct the Court appointed commission on May 9, 2011.
3. That the deponent has the highest and abiding faith in the institution of Judiciary and it has not been my intention of doing anything which would undermine the dignity and prestige of the institution.
4. That the deponent hereby tenders unconditional apology before this Hon’ble Court for the incident which took place on May 9, 2011 before the Court appointed commissioner, out of which this contempt proceedings arise and further undertakes to maintain a good behaviour in future.”
31. The apology tendered by the two respondents does not inspire confidence and is merely an endeavor of the respondents to get away scot-free for their deliberate and willful defiance of the orders of the Court. The apology tendered by the two respondents is not to the satisfaction of this Court. The stand taken by the two respondents in their affidavits of apology is at variance with the stand taken by them before the Local Commissioner and in their respective replies. They now, for the first time, claim that they acted on advice given to them. However, it is not disclosed as to on whose advice they so acted. They do not disclose as to when and how this advice was rendered. For the first time, they claim that all the hardware and software assets at the premises in question belonged to Advance Valves Global. No such statement appears to have been made before the Local Commissioner, or even in their replies. Even with the affidavits of apology, apart from their ipse dixit, there is no material produced to support or substantiate the said plea. The statements of the respondents that they have the highest and abiding faith in the institution of this Court, or that they did not intend to do anything which would undermine the dignity and prestige of this institution does not inspire confidence. Pertinently, even at this stage, the respondents do not state that they are, even now, willing to comply with the order of the Court and grant inspection to the Local Commissioner.”

15. Further, in the judgment Louis Vuitton Malletier v. Mr. Omi & Anr. [(2018 SCC) OnLine Del 10343] the Court while holding the Respondent therein in contempt for making statements contrary to the report of the local commissioner emphasised that a local commissioner is effectively the eyes and ears of the Court, who is appointed because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site. The relevant portion of the judgment is extracted hereinunder:
“A LOCAL COMMISSIONER APPOINTED BY THE COURT IS EFFECTIVELY THE EYES AND EARS OF THE COURT AND THE REPORT IS PART OF THE COURT RECORD. THE DEFENCE THAT A LOCAL COMMISSIONER’S REPORT IS NOT MENTIONED IN ANY REPORTED JUDGMENT, AS THE BASIS OF CONTEMPT IN THE FACE OF THE COURT IS AN UNTENABLE ARGUMENT AS THE INSTANCES OF CONTEMPT MENTIONED IN THE JUDGMENTS, ARE NOT EXHAUSTIVE BUT ILLUSTRATIVE.

23. A Local Commissioner is a person appointed by the Court in pursuance of its powers vested under Order XXVI of the Code of Civil Procedure and is normally authorised to examine witnesses, conduct local and scientific investigations and/or sale of property, perform a ministerial act, examine accounts, partition of property and execute any other order as directed by the Court.
24. While conducting an investigation, a Local Commissioner is given wide powers as he is in effect a ground level representative of the judiciary. This view was favoured by the Andhra Pradesh High Court in Sri Mahant Narayana Dossjee Varu v. The Board of Trustees, the Tirumalai Tirupati Devasthanamas, Tirupathi, 1957 SCC OnLine AP 116. The Madras High Court in Pormusamy Pandaram v. The Salem Vaiyapamalai Jangamar Sangam, 1984 SCC OnLine Mad 190 has held as under:—
“5……..Its object is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in court but could be taken only from its peculiar nature, on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner, in effect, is a projection of the court, appointed for a particular purpose……..”
25. The Supreme Court in Misrilal Ramratan, Mansukhlal v. A.S. Shaik Fathimal (Dead) by LRs., 1995 Supp (4) SCC 600 has held that even a specious plea of non-examination of a Local Commissioner at the stage of trial cannot lead to the Commissioner’s report being overlooked or rejected by the Court. The above view of the Supreme Court was also relied upon by the Delhi High Court in Levi Strauss and Co. v. Rajesh Agarwal, 2018 SCC OnLine Del 6421, wherein it has been held as under:—
“9. The Local Commissioner is in fact a representative of the Court itself and it is for this reason that Order 26 Rule 10(2) of CPC clearly provides that once the Commissioner has filed the evidence along with his report the same shall be treated as evidence in the suit and shall form part of the record.”
26.  In the opinion of this Court, a Local Commissioner appointed by the Court is an extended arm and agent of the Court. The Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site. [See : Autodesk Inc. v. Arup Das, 2013 SCC OnLine Del 4225 and Anil K. Aggarwal V. Union of India, 2014 SCC OnLine Del 2292].
27. Consequently, the Local Commissioner is effectively the eyes and ears of the Court. Moreover, as the reports of the two Local Commissioners have now been admitted, the facts therein must be taken to be true and correct.
28. The contemnors’ only defence that a Local Commissioner’s report is not mentioned in any reported judgment, as an instance of contempt in the face of the Court, is an untenable argument as the instances of contempt mentioned in the judgments are not exhaustive but illustrative
29. Accordingly, this Court holds that the reports of the Local Commissioner form a part of the Court record and what is recorded therein, especially as it has not been disputed, shall be deemed to have been recorded/seen by this Court and the said reports can form the basis of an action under Section 14 of the Act 1971.
30. In fact, in the present case, the statements made by respondent no. 2/defendant no. 2 under oath, contrary to the two Local Commissioners’ reports, prejudice and/or interfere and/or tend to interfere with, the due course of the judicial proceeding and/or obstruct and/or tends to obstruct, the administration of justice.”

16. The overall conclusion after reading the local commissioner’s report, the affidavits of the contemnors and after perusing the photographs and video clips of Mr. Pavitra Dubey, is that there was non-compliance of the order dated 2nd November, 2023 and the local commissioner was not permitted to execute the commission at all. Further, there was offensive language used against the local commissioner. The various acts of contempt as can be gleaned from the report of the local commissioner include –
a. Arguing offensively against the Local commissioner;
b. Completely disbelieving the court’s order despite repeatedly being convinced of the same;
c. Levelling threats against the Local Commissioner;
d. Insulting the Local Commissioner;
e. Making baseless allegations;
f. Shouting and abusive behaviour qua the LC;
g. Indulging in and encouraging sloganeering to create a law and order situation;
h. Names dropping and using the name of a Hon’ble Judge of the High Court to prevent execution of the Commission;
i. Finally, with the above conduct, ensuring that the LC is not conducted.
17. In these facts and circumstances, the Court observes that both the contemnors by their conduct have impeded the course of administration of justice. Such conduct, if left unpunished, would erode the trust and faith reposed in the judicial system. Both contemnors are thus clearly guilty of contempt. They have not abided by the orders passed by the commercial court and the court has rightly, therefore, observed that prima facie there is criminal contempt.
18. While appearing today, both the contemnors have again tendered an unconditional apology to the Court for their behaviour and submit that they were not correctly advised. Both Mr. Kirti Uppal, Sr. Advocate and Mr. Mohit Mathur, Sr. Advocate pray that the same be considered as an unconditional apology and the contemnors also withdraw all the allegations made against the local commissioner and the Plaintiff.
19. The Court has perused the two affidavits of Mr. Pavitra Dubey, Adv and Mr. Rajesh Girothiya and has also heard the submissions on behalf of the contemnors and the Plaintiff in the suit.
20. Insofar as Mr. Pavitra Dubey, Advocate is concerned, this Court is conscious of the fact that any punishment could have a long term impact on the professional career of an advocate, who clearly ought not to have behaved in the manner as he did. Considering the age of both the contemnors, who are in their 30s, the Court reluctantly accepts the apology of the contemnors, which have been tendered.
21. The unconditional apology tendered is accepted subject to deposit of monetary fine and the following conditions: –
(i) A sum of Rs. 3 lakhs shall be paid towards the costs expenses etc. incurred by the Plaintiff for execution of the commission and for appearance before this Court. The same shall be paid within one month.
(ii) A sum of Rs. 1 lakh shall be deposited with Delhi High Court Natural Calamity Fund the account no. of which are as under:
Name: D.H.C.B.A. Natural Calamities Relief Fund
Account No. 15530110174395
Bank Name: UCO BANK
IFSC Code: UCBA0001553

(iii) In addition, a further sum of Rs. 1 lakh shall be deposited with the Registrar General of this Court for being sent to the concerned District and Session Judge in Kanpur so that the same can be used for some facilities including beautification of the District Court Complex in Kanpur. The amount shall be deposited in the following bank account of Registrar General of Delhi High Court:-

Name: Delhi High Court PDC Account
Account No. 15530110030226
IFSC Code: UCBA0001553

The said amount shall then be transferred directly by the worthy Registrar General of this Court to the concerned District Judge, Kanpur.

22. Ld. Counsel for the Plaintiff submits that the Defendant continues to violate the injunction order passed by the Commercial Court. Insofar as the said allegation is concerned, the Plaintiff is free to avail his remedies in accordance with law including under Order 39 Rule 2A CPC.
23. The Contempt Reference is disposed of in the above terms.
24. List for reporting compliance on 23rd September, 2024.

PRATHIBA M. SINGH
JUDGE

AMIT SHARMA
JUDGE
AUGUST 08, 2024
nk/rks

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