2002 (5) TMI 869

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....l for plaintiff have compromised the matter with the Defendant in terms of agreement for settlement dated 26.5.99, the same in Ex. C.A. As accordingly requested to dispose off the suit in terms of the compromise as arrived at between the parties.  CJ/DELHI  28.5.99"  "Statement of Sh. A. Sinha, Advocate for Defendant. I admit the statement of counsel for plaintiff. The same is correct. Defendants are bound to Ex C-A. Agreement for settlement has already Ex C-A signed by the Defendant at point - A.  CJ/DELHI  28.8.99"  Order File is taken up today an application Order 23 Rule 3 CPC. Ld. Counsel for parties. Memo of appearance filed on behalf of the plaintiff. I have gone through the statement of Ld. Counsel for parties and Ex C-A. In view of the statement given by the Counsel for parties and Ex C-A, the suit of plaintiff is disposed off as compromised. Parties shall be bound by their statements. No order as to costs. File be consigned to R/R. The date of 2.7.99 is cancelled.  CJ/DELHI  28.5.99" 3. The petitioner alleged that the alleged contemner despite an undertaking made in the said a....

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....nd 434876, 434877 and 434878 were drawn by you and your husband in favor of our client for the discharge of respective liabilities to return the moneys paid by our client to you and your husband under the said Lease Agreement and you respective liabilities under the Settlement of Agreement dated 26.5.99, and whereas the said cheques have been returned by your bank as unpaid on account of insufficient funds, our client is hereby serving you and your husband with a notice under Section 138 of the Negotiable Instruments Act, 1881 calling upon you to pay to our client the said amounts of Rs. 11,95,000/- and Rs. 4,05,000/- by each one of you separately within a period of 15 days from the receipt of the present notice by you, failing which you and your husband shall be deemed to have committed the offence under Section 138 of the Negotiable Instruments Act, 1881 and for which our client will take appropriate criminal legal action against you and your husband in accordance with law.  15. We further state on behalf of our client that the aforesaid dishonour of cheques is also in breach of solemn undertaking given to the learned Senior Sub Judge, Tis Hazari Courts, Delhi, in S....

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.... A contempt petition, as is well known, is not a substitute for execution proceedings. 13. Civil contempt involves the existence of the following conditions before a proceeding can be initiated under the said Act :-  (i) there must be a judgment or order or decree or direction or writ or other process of the Court;  (ii) an undertaking given to the judgment, etc. must be of an undertaking given to a Court;  (iii) there must be a disobedience of such judgment or breach of such undertaking;  (iv) the disobedience or the breach, as the case may be, must be willful. In the instant case, no undertaking had been or could be given to the Court. 14. In Bajranglal Gangadhar Khemka's case (Supra), Chagla, C.J., however, observed:-  "3. Now, Mr. Desai before us has contended that no undertaking was given to the Court in respect of which committal proceedings could be taken out. He says that the undertaking referred to in the decree was merely a solemn promise given by his clients to the other side. Mr. Desai has argued that no undertaking to the Court can be given where an action is compromised and where the Co....

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....ommittal of the party in default. Therefore, what we have to really consider is whether in fact, the plaintiffs gave an undertaking to the Court, and that we can only decide by looking at the consent decree itself.  6. It is necessary to look first at the scheme of the consent terms. We have first seven clauses which all deal with agreements between the parties. Each clause begins with the expression "Agreed". Then we come to Clause 8, which begins by saying "Ordered that the defendants do execute the said lease within a period of 2 months from the date hereof." Therefore, "Ordered" is used here in contradistinction to an agreement. Whereas the first seven clauses merely recorded an agreement between the parties, Clause 8 requires an order of the Court, which would be an executable order. And it is in this clause that the undertaking given by the defendants is incorporated. Therefore, Clause 8, on the face of it, was not dealing with any agreement between the parties at all. What the parties intended- and that intention is clear from the language used in Clause 8 itself--was that, with regard to a particular subject-matter dealt with in Clause 8, an order of the Court....

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....ven the consent order does not incorporate expressly or clearly that any such undertaking had been given either by the appellant or by his lawyer before the Court that he would hand over possession of the property to the receiver. In the absence of any express undertaking given by the appellant or any undertaking incorporated in the order impugned, it will be difficult to hold that the appellant willfully disobeyed or committed breach of such an undertaking. What the High Court appears to have done is that it took the consent order passed which was agreed to by the parties and by which a receiver was appointed, to include an undertaking given by the contemner to carry out the directions contained in the order. With due respects, we are unable to agree with this view taken by the High Court. A few examples would show how unsustainable in law the view taken by the High Court is. Take the instance of a suit where the defendant agrees that a decree for Rs. 10,000 may be passed against him and the court accordingly passes the decree. The defendant does not pay the decree. Can't be said in these circumstances that merely because the defendant has failed to pay the decretal amount he ....

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....d had no right that the Court should exercise its jurisdiction. 22. Having considered the matter, this Court is of the opinion that in the instant case no proceeding under the Contempt of Courts Act should be initiated. The undertaking given before this Court is qua the party to the lis and not qua the Court and in that view of the matter, no case for initiation of proceedings under the Contempt of Courts Act having been made out. The same view has been taken by two learned Judges of this Court in Urmila Salwan and Ors. v. Kasturi Lal Bhatia,1999 4 AD (Del) 805 and Indian Overseas Bank's case (Supra) 23. Reliance placed by Mr. Nayyar on Salkia Businessmen's Association's case (Supra) is misplaced. Therein a writ petition has been filed. The fact of the case was that the right of the party had been taken away by reason of a compromise in a writ petition and it was held by the High Court that a subsequent writ petition would not be maintainable. The Apex Court held that the public authorities cannot be encouraged to implement their own orders an to invent methods of their own to short-circuit and give a go-bye to the obligations and liabilities incurred by them unde....