When a matter is yet to be finally adjudication, it is appropriate to pass
any order in a collateral proceeding like any contempt proceeding emantaring out
of that? It is appropriate to entertain the request made by a party to conduct
cross examination in a contempt proceeding?
In one of such a recent case , the Hon'ble High Court of Gujarat at Ahmedabad
thrown light was having an occassion to deal with one of such a case.
In this matter , one contempt petition was filed against violation of one
undertaking given by Respondent in a Appeal proceeding. In this contempt
proceeding the Respondent No.1 made a request to conduct the cross examination
of the Petitioner. Let us see, how this issue was dealt with by the Hon'ble
In this case Petitioner namely Analytix Business Solutions (i) Pvt Ltd invoked
provisions of Order 39 Rule 2A CPC seeking initiation of contempt proceeding
against the Respondent No.1 namely Mr.Nihir Shah.
Respondent No.2 is the name of company being run, controlled and Managed by the
Respondent No.1.The Respondent No.1 is engaged in the same business activity as
that of the Petitioner.
The factual background , leading to filing of the present Contempt Petition was
A software or computer program namely 'Financial Statement Review Application"
was conceptualized and developed by the in-house team of the applicant in the
The Respondent No.1 was working as employee of the Petitioner and was also part
of said Team. At the time of Joining the Petitioner Company, the Respondent No.1
also undertook not to divulge any proprietary information, intellectual property
or any data to any third party or even for its own use.
Inspite of that the Respondent No.1 was indulging in disclosing the said
confidential information to other parties. Constrained of which suit was filed
by the Petitioner against the Respondent No.1 seeking the relief of inter alia
restraining the Respondent No.1 from divulging such information.
However no interim injunction was granted in favour of the Petitioner. Being
aggrieved of the same, the Petitioner filed Appeal before the Hon'ble High Court
of Gujarat at Ahmedabad.
In Appeal, the Respondent No.1 appeared on first date and undertook not to
utilize the said confidential information namely Financial Statement Review
Application to any other person, till next date. The said undertaking continued
During the pendency of the Appeal proceeding, it came to the notice of the
Petitioner that the Respondent No.1 was violating the afore mentioned
undertaking given to court.
Accordingly the Petitioner moved application under Order 39 Rule 2A CPC seeking
initiation of contempt proceeding against the Respondents.
During the course of argument on contempt Petition, the Respondent No.1 sought
permission from the court to conduct the cross examination of the Petitioner.
The Hon'ble Court observed that in view of several documents having been
presented and in view of the request for cross-examination being made, detailed
adjudication is deserved to be made, but under the guise of this off shoot
proceedings, it is not open for the parties to avoid the hearing of the main
matter on merit.
The Hon'ble Court indicated that any observation or conclusion which may be made
will have a bearing upon the issue being examined in the main proceedings and
that normally, to be avoided in the present off shoot procceding.
The Hon'ble Court also relied upon the Judgement of Hon'ble Supreme Court of
India, passed in similar situations, titled as Quantum Securities Private
Limited and others Vs. New Delhi Television Limited
reported in (2015) 10
SCC 602 :
22. We are also of the considered view that when the issue on merits is seized
of by the original court in civil suit/proceedings and rights of the parties are
still not decided on merits then it is not proper for this Court to probe into
the facts and record any finding on any of the issues arising out of collateral
proceedings such as the one here else our observation may cause prejudice to the
parties while prosecuting their case before the original court on merits.
Actually facts of the afore mentioned case was also almost similar to present
case. In Quantum Securities Private Limited and others Vs. New Delhi
case also, the Plaintiff therein filed suit against the
Defendant therein and sought the relief of inter alia permanent injunction from
writing any defamatory letters to third parties.
The Court granted ex-parte injunction in favour of plaintiff.During the course
of proceeding, it came to the notice of the Plaintiff that the Defendants were
disobeying the court order. In such situation contempt petitions were filed two
times by the Plaintiff and notices against the Defendants were issued on the
said contempt petition. Being aggrieved of the afore mentioned issuance of
notices in the contempt petition, the defendant filed Appeal.
In the aforementioned Appeal, Plaintiff relied upon a judgment of Hon'ble
Supreme Court of India, reported as Welset Engineers and Anr. vs. Vikas Auto
Industries & ors
, 2006 (32) PTC 190 (SC) where in it was observed by the
court that merely because disputed questions of fact are involved, it would not
preclude the Court from exercising its jurisdiction under the Contempt of Courts
However in afore mention Quantum Securities Private Limited and others Vs. New
Delhi Television Limited reported in (2015) 10 SCC 602, the Supreme Court of
India kept the contempt petition pending and instead preferred the main matter
to be decided.
In the instant case , the main Appeal against refusal of interim injunction
order was still pending and rights of the parties were yet to be adjudicated.
The request made by the Respondent No.1 for cross examination in off shoot
proceeding of contempt , would certainly be having bearing on the main
In view of the above, the Hon'ble Court adjourned hearing in the contempt
petition. The Court however keep the right of Petitioner to press for this
petition, after disposal of the main Appeal itself.
It is submitted, there fore conclusion is that where rights of parties are yet
to be finally adjudicated, it is not advisable to passed any order on the
request of cross examination made in any colatetal proceeding like the present
Contempt Petition was.
The reason beahind this is, it may be possible that the case may be decided
against the person, who is pressing for initiation for contempt proceeding.Hence
it is preferable to decided the main proceeding, instead of entertaining any
request of cross examination made in collateral proceeding.
Date Of Judgement: 08.06.2022
Case No: Appeal From Order No. 113 Of 2021
Case Title: Saint-Analytix Business Solutions I Pvt Ltd Vs Nihir Shah
Name Of Hon'ble Court: High Court Of Gujarat At Ahmedabad
Name Of Hon'ble Judge: The Honourable Justice Shree Ashutosh J.Shastri
Written By: Ajay Amitabh Suman,
IPR Advocate, Hon'ble Delhi High Court,
Email: [email protected]