The Supreme Court in the case of Amazon.com NV Investment Holdings LLC vs. Future Retail Limited doubted the correctness of its judgment in the case of U.C. Surendranath (supra) which held that Order XXXIX, Rule 2-A of the Code of Civil Procedure requires not “mere disobedience” but “wilful disobedience.
The bench in U.C. Surendranath case observed that – “For finding a person guilty of willful disobedience of the order under XXXIX Rule 2A C.P.C. there has to be not mere “disobedience” but it should be a “willful disobedience”. The allegation of willful disobedience being in the nature of criminal liability, the same has to be proved to the satisfaction of the court that the disobedience was not mere “disobedience” but a “willful disobedience”.
The bench comprising Justices RF Nariman and BR Gavai doubting the correctness of the interpretation made in the above stated case held that “It is one thing to say that the power exercised by a court under Order XXXIX, Rule 2-A is punitive in nature and akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. It is quite another thing to say that Order XXXIX, Rule 2-A requires not “mere disobedience” but “wilful disobedience”. We are prima facie of the view that the latter judgment in adding the word “wilful” into Order XXXIX, Rule 2 A is not quite correct and may require to be reviewed by a larger Bench. Suffice it to say that there is a vast difference between enforcement of orders passed under Order XXXIX, Rules 1 and 2 and orders made in contempt of court.
Furthermore, it added that orders which are in contempt of court are made primarily to punish the offender by imposing a fine or a jail sentence or both, whereas Order XXXIX, Rule 2-A is primarily intended to enforce orders passed under Order XXXIX, Rules 1. And in the same manner civil courts are given vast powers which include the power to attach property, apart from passing orders of imprisonment, which are punitive in nature.