2018 (5) TMI 574

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....ement was filed before this court and the winding up petitions were disposed of on 12.1.2015. 2. The admitted position is that as per the Settlement Agreement the petitioner had undertaken to pay a sum of 30.37 million USD in stated 12 instalments. The settlement also provided that if there is default in payment of the said instalment amounts in accordance with the payment schedule then the entire outstanding amount of USD 35,740,136/- less any amount paid under the said Agreement would become payable immediately. 3. After some default the petitioners have paid the amount in terms of the Settlement Agreement, namely, USD 30.37 million plus interest. 4. Subsequently the respondent No.3 filed an application before the Company Court seeking revival of the winding up proceedings in view of the default committed by the petitioner. Reliance was placed on the stated clause of the Settlement Agreement which provided that in case of default by the petitioner the full amount of USD 35,740,136/- was payable by the petitioner. This Court by order dated 29.5.2017 dismissed the said application holding that as the respondent No.3 company had accepted the payment in the extended perio....

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....d. It is also pointed out that even in the order dated 29.5.2017 when the application of the respondents was not accepted for revival of the winding up petition no specific direction was passed holding that the respondents are obliged to release the Trina Solar Receipts or withdraw the arbitration proceedings. Reliance is placed on judgment of the Division Bench of the Allahabad High Court in Arun Kumar Tiwari and Ors. vs. Rajesh Pandey and Ors., 2015(6) ADJ 338 and judgment of the Supreme Court in Kanwar Singh Saini vs. High Court of Delhi, (2012) 4 SCC 307. 8. I may first see the order of this court dated 12.1.2015. The order reads as follows:- "CO.PET. 584/2014 CO.PET. 585/2014 Both these matters are stated to have been settled in terms of the compromise arrived at between the parties on 8th January, 2015, A copy of the settlement agreement entered into between the parties has also been filed before the Court along with affidavits of Principal Officers of both the parties. The same is taken on record. Both the parties affirm the settlement arrived at between them. Counsel for respondent-company undertakes to this Court to pay the instalments in terms of the schedule ....

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....ny had received an huge sum of USD 31 million approx. under the settlement agreement would it then be entitled to seek revival of the liquidation proceedings, seeking resort to Clause 4 (supra). The answers would be "No". 11. It is the settled law that if the Time limit is provided by a consent order, the Court has the jurisdiction power to extend such time on the basis that when such-consent terms are filed by the parties and accepted by the Court, such terms merge in the order of the Court and; then the Court is well within its power to extend the time for making payments of the instalments. Rule 9 of the Company (Court) Rules confers inherent powers upon this Court to pass any order in the interest of justice and hence it has-the discretion to grant extension of time. ..... 13. Thus, per law, discussed above since the petitioner company has accepted the payments in the extended period and that too with interest on the default instalment, then simply because there was delay in making the payments under the settlement agreement, it would not be justifiable to take recourse to clause 4 of the Settlement Agreement and thus vitiating the efforts made by the Court to concl....

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....terms and conditions of the Settlement Agreement dated 8.1.2015 and hence the respondents are justified in withholding necessary certificates and continuing with the arbitration proceedings. 15. The Supreme Court in Ram Narang vs. Ramesh Narang and Another (supra) was dealing with a case where the petitioner and the respondent represented two groups of members of one family. More than eight cases were sought to be disposed of by settlement of the disputes. The parties filed the Minutes of consent order before the court. An undertaking was also recorded by the parties that they will implement the terms of the Minutes of Consent. It was in those facts and circumstances that the court held as follows:- 22. The Court then considered various consent orders which could not base proceedings for contempt if the consent orders were violated. Thus for example, a decree for payment of money if not complied with could not found an action for contempt. Similarly, the allocation of certain property to a party by consent would not give rise to proceedings of contempt if possession of property was not given to that party. The Court was of the view that: (SCC p. 53, para 10) "In the absenc....

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....16. Similarly, the Supreme Court in Kanwar Singh Saini vs. High Court of Delhi (supra) held as follows:- "16.Be that as it may, the so-called statement/undertaking given by the appellant/defendant culminated into the decree of the civil court dated 12-5-2003. Thus, the question does arise as to whether the application under Order 39 Rule 2-A CPC or under the 1971 Act could be entertained by the civil court and whether the matter could be referred to the High Court at all. ...... 18. In case there is a grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order 39 Rule 2-A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order 21 Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the 1971 Act w....

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....es is embodied in a final order or decree of the Court, the remedy of a party which is aggrieved by the non-payment of sums due and payable under it is to enforce and execute the decree in accordance with law. .... 14.....Once a settlement is arrived at in the course of a mediation proceeding, the enforcement of the terms of settlement as a decree of the Court, upon a final order of the Court passed in terms of the settlement, must take place in a manner provided for the enforcement of decrees and orders. Recourse to the contempt jurisdiction would not be warranted. The issue in regard to the maintainability of a contempt petition cannot, with respect, be resolved on the basis of the importance of the mediation and conciliation centre as a Court annexed institution. The essence of the matter is that the terms of the settlement agreement which was arrived at in the course of mediation proceedings would have to be enforced as a decree of the Court once a final order was passed by the Division Bench in its terms on 4 January 2013."   18. The legal position that follows from the above judgments is that all decrees and orders are executable under the Code of Civil Proce....